A good friend who knows that I regularly write on criminal justice issues recently sent me an email inquiring as to how many convicted felons there are in the U.S. I expected the answer to be readily available through a simple Google search, but more than a fair amount of research yielded no satisfactory answer.
This struck me as being a rather odd omission. There are easily accessible and sometimes rather exact statistics on the quantity of a variety of things in the U.S. For example, the number of TV's is reported to be 257,208,958, the number of cars registered is approximately 62 million and the number of firearms is estimated to be 300 million. There are even statistics on specific illnesses, like cancer. Available government data claims that there are roughly 12 million people in the U.S. suffering from the disease. Yet nowhere are there statistics on one of the main byproducts of the social ill of mass incarceration, the number of convicted felons.
Nevertheless, several studies have attempted to determine the approximate number of Americans who have been convicted of a felony and thus rendered to be something less than a citizen. Much of this research centers on the issue of voting rights.
The U.S. frequently cites budgetary concerns when cutting social programs like education, yet there are abundant resources for "corrections"
The idea of taking away a criminal's right to vote has been around since ancient Greece and Rome. A condition called "civil death" in Europe involved the forfeiture of property, the loss of the right to appear in court, a prohibition on entering into contracts and the loss of voting rights. Civil death was brought to America by English colonists, but most aspects of it were eventually abolished, leaving only felon voting disenfranchisement intact in parts of modern America.
Felony conviction has become an effective tool in the U.S. for voter disenfranchisement
Even in states where convicted felons automatically regain the right to vote upon completion of their sentence, the process of re-registering to vote often is difficult. One reason is the complexity of the laws and processes surrounding voting disenfranchisement. In some cases, it is difficult to even determine whose rights can be restored. This can vary in some states according to the date of the crime, the date of conviction and when the offender was released from prison. The specific nature of the crime can also be a factor in the restoration of voting rights.
The complex restoration process is often daunting. It frequently involves lengthy paperwork, burdensome documentation, and the involvement and coordination of several state agencies. The onerous nature of the restoration process often dissuades ex-offenders from completing its requirements. Arguably, it may be specifically designed precisely to achieve that goal.
As U.S. rates of criminal punishment have increased dramatically over the past 40 years, social observers have undertaken efforts to document the consequences of this increased vindictiveness. Much of the increase can be attributed what is typically referred to as "over-criminalization."
Paul Larkin of the Heritage foundation says over-criminalization is the "overuse and sometimes even the misuse of the criminal law." As a former Department of Justice attorney and a criminal enforcement agent at the Environmental Protection Agency, Larkin believes the reason these cases are prosecuted is simple.
"The agents who are investigating a case will have supervisors tell them if you're spending time on this, then I want a conviction. The prosecutors have a boss that will tell them the exact same thing," Larkin said.
"Why? Because they want to be able to go to Capitol Hill and show all the cases that they've made to show that they need not just the money they got last year, but even more," he explained.
Paul Larkin of the conservative Heritage Foundation cites "over-criminalization" as a driving force behind America's proclivity to incarcerate
Criminal justice experts like Timothy O'Toole, an attorney with Miller & Chevalier, argue that empowered authority often leads to problems.
"Once you have law enforcement people on staff, and you have these laws that are very broad, you almost consider yourself to have a mandate to go and find crime, even if no one's really seen it before then," O'Toole said.
Federal judges, long viewed as partners in prosecution, have recently expressed concern with the type of overuse and misuse cited by Larkin and O'Toole. On April 22, 2014, a federal appeals court for the Second Circuit considered exactly what constitutes insider trading, which has long been a notoriously amorphous federal crime subject to the whims of prosecutors. The appellate panel was critical of a judge for making it too easy to convict two hedge fund managers of insider trading, lending support to claims their verdict was unfair and possibly unraveling other government cases if the court rules in favor of the defense.
"The financial sector should be assured innocent actions won't be criminalized by zealous prosecutors," warned U.S. Circuit Judge Barrington Parker.
"We sit in the financial capital of the world," Parker said. The atmosphere that you have "gives precious little guidance to all the institutions, all the hedge funds that are trying to come up with some bright line rule of what they can and can't do."
Appellate Judge Barrington Parker queried government prosecutors about a variety of misdeeds including selective prosecution and judge shopping
"It looks like the government is taking completely inconsistent views on a critical point of law," Parker said. "I'm concerned that the government is taking the position in these key points of law, which seems to vary depending on which judge you're talking to."
Just as AUSA Antonia Apps stood to begin arguing for the government, Parker interrupted the prosecutor to raise an issue that was not even part of the appeal, why the government chose to file the insider-trading case being reviewed as a criminal case related to a matter already before USDJ Richard Sullivan.
"I notice a pattern," Parker said. "Can you allay concerns about what the government did to move these cases around until they could get their main case before Judge Sullivan, their preferred venue?"
Federal prosecutors have routinely sought to steer criminal cases to USDJ Richard Sullivan, believing him to be a reliable rubber stamp for the prosecution
What Parker found troubling is the government's pervasive habit of judge shopping. This is the practice of getting cases before specific jurists likely, in the government's view, to side with federal prosecutors and give short shrift to the defense. Judge shopping is merely another symptom of prosecutors' misguided goal of winning at any cost. It is another way that prosecutors game the system and short-circuit the process of achieving justice.
Prosecutors, and the judges who work in tandem with them, play a duplicitous game of violating the rights of the accused while holding themselves out as representatives of "the best legal system in the world." While their success in doing so continues to propel individual careers up the judicial-corporate ladder, the net effect of their dubious achievements can be absurd and embarrassing.
One of the results of successfully gaming the system is the ridiculous and patently illegitimate 99% conviction rate in federal court. The same federal prosecutors who propel their careers by convicting at any cost are loath to admit this unconscionable rate of conviction, more akin to what one would expect to find in a third world nation. You need not be a mathematics major to readily see that even if every defendant in federal court were actually guilty, a normal margin of error would be expected to yield a significantly lower conviction rate. Making conviction a near certitude strongly suggests a result oriented process that woefully lacks justice, due process and respect for the rights of the accused.
Despite professing unprecedented freedom and exceptionalism, the incarceration numbers in the U.S. tell a decidedly different story
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