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OpEdNews Op Eds    H2'ed 5/15/14

The Pathology of Prosecution: a Broken System of Justice

Follow Me on Twitter     Message Barry Sussman
"It is the invariable habit of bureaucracies, at all times and everywhere, to assume... that every citizen is a criminal. Their one apparent purpose, pursued with a relentless and furious diligence, is to convert the assumption into a fact. - H.L. Mencken.

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Writer H.L. Mencken's observation on ubiquitous criminalization has proven to be prescient

"The right to do what the law does not prohibit, without fear of harassment or punishment, is one of the hallmarks of a free society." --Judge Alex Kozinski, Chief Judge, U.S. Court of Appeals for the Ninth Circuit

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Despite Judge Kozinski's flowery prose, federal judges have routinely served as enablers of rampant prosecutorial misconduct

The ongoing criminalization of hitherto innocent acts has resulted in such an explosion of criminalization that no one knows how many federal crimes actually exist. In the past, the Department of Justice (DOJ) and the American Bar Association (ABA) separately attempted to address this absurdity by preparing a complete list of federal offenses. Neither the DOJ nor the ABA succeeded. No other governmental or private organization has subsequently attempted to resolve this matter. The result is that no comprehensive, easily accessible list of federal crimes exists today.

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The American Bar Association's mission statement to "pursue justice" is hobbled by its inability to calculate the total number of federal criminal violations
Recent events in the American criminal justice community are finally destroying the last vestiges of the misguided notion that prosecutors, as well as other cogs in the wheel of the prison-industrial complex, function for the benefit and protection of the populace. This selfish and self-centered enterprise is well along in the process of being exposed as nothing more than a racket for pathological and often sociopathic individuals to make careers out of the bodies of their victims.
Attorney General Eric Holder, a career prosecutor and lifelong proponent of enhanced and expanded penalties for even the most trivial of federal offenses, has recently become a leading advocate of what the media politely refers to as "sentencing reform." Meaningful reform would look very different from Holder's modest and opportunistic proposals, but the system has become so pernicious that even meager relief is being hailed as "substantial." While Americans are typically reluctant to admit that their self-proclaimed "greatest (legal) system in the world" continues to incarcerate more of its citizens than any nation in the history of mankind, a variety of factors have caused Holder to now position himself as a criminal justice reformer. Ever the opportunist, it is likely nothing more than a realization that the prevailing political winds are currently blowing a direction supporting reform.
The actions of Holder's underlings, however, offer a greater insight into America's pathology of prosecution and obsession with punishment. Transcending mere opportunism, the assistant U.S. attorneys (AUSA's) and others employed as foot soldiers in the federal criminal justice system , display a rigidity and dogmatic certitude which prevents them from falling in line with their boss' recent shift away from strident punishment. Their intransigence also reveals that it is they, and not the people they allegedly serve, who figure foremost in their professional decision making. Recent developments reveal their claims of working to serve and protect the public to be utterly nonsensical.
In February of 2014, as Holder's push to moderately temper parts of America's draconian federal sentencing scheme began to take shape, the National Association of U.S. Attorneys (NAAUSA) openly criticized their boss' initiatives.

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U.S. Attorney General Eric Holder has been speaking of sentencing reform, but his underlings are resisting efforts to curb over-criminalization and mass incarceration

The National Association of Assistant United States Attorneys, an organization representing about 1,300 of the 5,600 federal prosecutors, sent a letter to Attorney General Eric Holder objecting to his endorsement of the Smarter Sentencing Act, which would lessen certain drug penalties. The bipartisan Senate bill would lighten prison sentences for people convicted of nonviolent drug offenses.
The letter, signed by NAAUSA president and AUSA Robert Gay Guthrie, argues that the U.S. should resist calls to reform its mandatory minimum laws, which require judges to sentence certain drug defendants to lengthy prison terms, even if the judge considers those sentences excessive.
In the letter, Guthrie insists that the "merits of mandatory minimums are abundantly clear," insisting that they reach "only to the most serious of crimes" and "target the most serious criminals."
Guthrie went on to say, "We believe our current sentencing laws have kept us safe and should be preserved, not weakened.

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NAAUSA President Robert Guthrie sees nothing wrong with zealously prosecuting even the most trivial of offenses

The sentencing laws referenced by Guthrie have created the largest network of prisons the world has ever seen and caused the U.S. to become the undisputed world leader in both number and percentage of people under lock and key. Yet these purported public servants believe the status quo must be "preserved."
As if their patently false assertions aren't ridiculous enough, an online poll conducted by NAAUSA found that just 15 percent of the nearly 650 federal prosecutors surveyed supported the Smarter Sentencing Act, while over 60 percent opposed it. These sentiments are not only out of step with their boss, who as attorney general sits atop the DOJ, but also contravene recent bi-partisan efforts to reform the federal criminal justice system and effectively undo at least part of the damage wreaked by federal prosecutors.

The NAAUSA decided to dive into the debate over mandatory minimums after conducting the recent online survey. This survey also touched upon other criminal justice hot button issues. The results revealed a stunning level of cognitive dissonance in that more than 80 percent of the AUSA's interviewed do not believe the criminal justice system is "broken," as Holder has repeatedly admitted. More than seventy-five percent of these same purported public servants also claimed in the survey that they do not believe the justice system disproportionately punishes people of color.
Despite the U.S leading the world in incarceration, federal prosecutors are defying efforts of superiors to reform the system
The actions and beliefs of these prosecutors reveal an arrogant disdain for very public they claim to serve. "Public protection" is a common refrain for federal prosecutors, but for them the public is merely a vehicle by which to advance up the judicial-corporate ladder. The "win at any cost" mentality frequently seen in federal prosecutors may be employed for the purported benefit of the public, but in actuality has long served as an effective method of career advancement. And make no mistake about it- for federal prosecutors, wins are measured in years. The longer the sentence, the more significant the "victory."
The ongoing war being waged by federal prosecutors is, in actuality, the very antithesis of public protection. In fact, it is a war being waged against the public. And the public is waking up to the fact that prisons are being packed with non-violent offenders whose imprisonment serves no recognized societal goal. The reticence of federal prosecutors to heed their boss' directions and acquiesce to the will of the public speaks volumes about whose interests are truly being served.
Hypocrisy has emerged as another significant element in the pathology of prosecution. While expecting targets of their prosecutorial efforts to follow regulations that may not even be known to exist, prosecutors routinely ignore inconvenient parts of the law. Much of this stems from a pathological belief that the ends justify the means.
Prosecutors tend to harbor a Manichean view of the world in which people either wear white hats or black hats. There are no shades of grey. Once a prosecutor makes a determination that their intended target is "bad," they become fair game and constitutional protections are subject to unhesitating defenestration. This "win at any cost" mentality is what is behind the epidemic of false convictions plaguing the American criminal justice system. The prosecutorial mindset dictates that the accused is "bad" and thus "guilty." Whether or not they are actually guilty of the offense charged is a mere technicality.
The situation is especially egregious federal court where the ever-expanding federal Criminal Code offers a plethora of crimes with which a person may be charged, so false convictions are rarely a worry. Nevertheless, a variety of violative tactics, including subornation of perjury and the withholding of exculpatory evidence, permeate the federal prosecutorial process.
Former AUSA Sidney Powell has written about her experience as a federal prosecutor and the picture she paints is highly disturbing. In her book Licensed to Lie, she details the injustices and inhumanities perpetrated by self-aggrandizing federal prosecutors. Powell explains how they truly had a license to lie and to destroy innocent lives, without having conscience enough to even acknowledge the suffering they caused. The suffering endured by the many innocent defendants described by Powell, and the complete lack of integrity, fair play and justice by power-driven federal prosecutors, leave Powell without faith in the American legal system. What she describes is anything but a forum where justice is expected to be attained.
Attorney Sidney Powell cites a complete lack of prosecutorial ethics as a major factor contributing to America's broken system of justice

Prosecutors and their acolytes continue to argue for complete and absolute immunity from civil liability. They essentially claim that the ability to ignore the law is critical to their job performance. The argument they advance is that self-regulation and professional sanctions from state bar associations are sufficient to deter prosecutorial misconduct. Yet there is scant evidence that state bar associations are doing anything at all to reign in rogue prosecutors. The record reveals that those who misbehave are rarely, if ever, professionally disciplined.
In a culture where racking up convictions at any cost puts prosecutors on the fast track to promotions, elevation to higher office and high-paying positions with white-shoe law firms, civil liberties activists and advocates for criminal justice reform worry that there is no countervailing force to hold overzealous prosecutors to their ethical obligations.
The exhaustive and ever-expanding federal Criminal Code has criminalized a plethora of seemingly innocent acts

In the final analysis, one of the most powerful positions in public service - a position that carries with it the authority not only to ruin lives, but in many cases the power to end them -- is almost entirely shielded from liability and accountability. The freedom to recklessly advance free of consequences has created a pernicious culture of corruption. Prosecutors freed from any ethical mooring pose a greater threat than the "criminals" from whom the public is purportedly being protected.

(Article changed on May 15, 2014 at 20:30)

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Barry Scott Sussman- Born and raised in New Jersey. Graduated from Rutgers University with a BA in Sociology. Graduated with a JD from the Benjamin Cardozo School of Law specializing in Federal Criminal Procedure and Federal Prosecutorial (more...)

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