While I am ecstatic over the new coalition of right and left, I hope these disparate groups realize that mass incarceration is not the problem, but rather the result of:
Too many laws with prison as penalty (approximately 314,000 at the federal level alone).
Perversion of the grand jury process. The once open forum is now held behind closed doors where all manner of untoward activity takes place. (I have yet to read a transcript where government did not lie or mislead the grand jury to garner an indictment). With a 96.5% plea bargain rate, the grand jury represents most defendants' sole opportunity for adjudication. The elimination of fairness and openness in this process fouls the entire system. Statistically, an indictment is a conviction under the current system.
Absence of due process of law in proceedings and outright government lawlessness has led to this extraordinary rate of plea bargaining (96.5%). A defendant is often punished for going to trial and generally suffers coercive if not lawless measures by government and court to force his or her "voluntary" plea of guilt.
The elimination of parole, where non-violent prisoners who were not a danger to society were released within their sentence, worked well and was fair. Since 1984, however, prisoners suffer "supervised release" after full completion of their sentence. This unfair second sentence has caused recidivism rates to skyrocket while creating the revolving door that keeps men and women trapped in the system. A small infraction of rules, not laws, is all that it takes to return a person to prison, even though their sentence has been completed in full. This is very wrong.
Lack of oversight or penalty for lawlessness of prosecutors and judges. Peer review is all that remains due to a string of decisions beginning in 1967 with Pierson v. Ray. The courts have judicially granted themselves immunity from prosecution for crimes committed against "We the People," in what should be a violation of the 14th Amendment. Judges and prosecutors are above the law, by law, which goes a long way to explain why it is no longer followed by many of them.
Until prosecutors and judges who knowingly violate the rights of those coming before their courts suffer a penalty for so doing, there will be little change. Of the 400+ criminal cases I have worked on over the past eight years, government (or judicial) misconduct could be found in every one. 56 blatant violations of federal criminal statutory and constitutional protections were committed by a senior federal judge and two Assistant U.S. Attorneys in just one North Carolina case I studied. Criminal conduct by bench and bar has become endemic and epidemic.
The most commonly violated law by courts and prosecutors today is also the most basic (The Speedy Trial Act of 1974). By law and Sixth Amendment, a defendant is to be tried within 70 days (18 USC Section 3161), absent a handful of excludable delays, but I have never seen this happen in a single case. Under the same act (Section 3164(c)) government is required to release any prisoner after 90 days of detention if they have not been tried, but again, that law is not followed by courts and prosecutors, though it is just as much the law as the one the defendant being illegally held allegedly violated. The defendant is jailed for violating criminal statutes, while judges and prosecutors go free for equal or worse criminal conduct against the citizenry. A few black robes and pin-stripes being sent to the county lock-up would quickly stop this, while giving these bad actors of bench and bar a bit more empathy for those who come before them.
With the present system where there is no penalty against government or court for false imprisonment, defendants are rarely released, and then, only when (and if) they agree to a plea bargain. 77% of federal prisoners never see one moment of freedom between arrest and prison, according to the Department of Justice's Bureau of Statistics (2008).
Until government and court are forced to return to rule of law, this Alliance is wasting its time, I fear, as any improvement will be temporary.
To cure the manifestation of these problems (mass incarceration), I suggest that we deal with its causes. Four simple steps can accomplish that:
Imprison those we fear rather than those we dislike. Murderers, rapists, thieves, arsonists and those who endanger our lives alone should be removed from society. There is no longer any effort to "reform" those behind bars, so keeping the non-violent there simply turns them into anti-social animals as well.
Re-instate parole in all sentences (which requires doing away with mandatory ones) and eliminate "supervised release" except in the case of violent criminals.
Create an Office of Ombudsman in every federal district with the authority to: a) grant immediate relief to defendants treated in an unlawful manner by those acting under color of law, and b) the power to independently convene grand juries and prosecute bad actors of bench, bar and government who violate the statutory and constitutional protections of citizens and defendants.
Eliminate plea bargaining, or in the alternative, revoke government's ability to "waive" its own misconduct in those agreements, making constitutional violations at any step of the process a cause for immediate relief or overturn.
By taking these four simple steps back toward Constitutional rule of law, we no longer have the problem of mass incarceration.
Thank you, Bill, for the opportunity to comment.
Howell W. Woltz
Author of "Justice Denied: the United States v. the People," and "The Way Back to America: a 10-step plan to restore the United States to constitutional government."