Monday, 24 November 2014 / TRUTH-OUT.ORG

America's Three-Tiered Justice System

Wednesday, 20 March 2013 00:00 By Mike Lofgren, Truthout | News Analysis

Attorney General Eric Holder speaks to reporters at the U.S. Capitol in Washington, June 19, 2012. On March 6, testifying before the Senate Judiciary Committee, Holder indicated that some banks may be too big to prosecute. (Photo: Jonathan Ernst / The New York Times) Attorney General Eric Holder speaks to reporters at the US Capitol in Washington, June 19, 2012. On March 6, testifying before the Senate Judiciary Committee, Holder indicated that some banks may be too big to prosecute. (Photo: Jonathan Ernst / The New York Times) Big shots are above the law, the government now admits, but a three-tiered justice system has Congress churning out new bills to keep the prison industry booming.

"Equal Justice under Law," is the motto inscribed on the frieze of the United States Supreme Court building.

Sticklers for semantics say that the modifiers "equal" and "under law" in the Supreme Court's motto are redundant, because justice by definition is equal treatment under a system of written and publicly accessible rules. Whether that is the case is precisely what is at issue in America today.

Tier I: The Great and the Good

Events since the collapse of Lehman Brothers in September 2008 have provided plenty of fodder for the belief that there is one law for the rich and another for the common clay. Practical as opposed to explicit inequality before the law is common in societies all over the world; it usually boils down to how legal procedures are applied as opposed to what the letter of the law is on the statute books. Officials who are pledged to uphold the law will invariably protest that they are neutral and unimpeachable executors of justice and that it is unthinkable to suggest they are administering a rigged system. Honi soit qui mal y pense! ("Shamed be he who thinks evil of it.") is their usual indignant attitude when the rabble becomes pushy.

It is unclear if there was a rare outbreak of candor among officials in Washington during the past two weeks, or whether they simply calculated that the system has so completely slipped from public control that it doesn't matter if forbidden truths are spoken. On March 6, testifying before the Senate Judiciary Committee, Attorney General Eric Holder stated the following: "I am concerned that the size of some of these institutions becomes so large that it does become difficult for us to prosecute them when we are hit with indications that if you do prosecute, if you do bring a criminal charge, it will have a negative impact on the national economy, perhaps even the world economy." Yes, well, that could explain it. When the banks hold a gun to the head of the economy, it is no longer the relationship between regulator and regulated, but a hostage relationship. A relationship made even more complex, no doubt, by the fact that the hostage-taker is also the principal corporate funder of the bosses of the putative hostage negotiators.

Apparently none of his senatorial interrogators had the wit to ask the following of the attorney general: Why would criminally prosecuting a handful of senior executives at a financial institution be more economically damaging than levying a civil fine? HSBC's $1.9-billion settlement with the Justice Department for money-laundering is almost derisory in view of its $21.9 billion in global profits during the past year, but if anyone is going to suffer from that small subtraction from the bank's revenues, it is likely to be shareholders and depositors who had nothing to do with the crime rather than the management who committed it. And even in an extreme situation, where most or all of a bank's management were criminally involved, the government could seize the bank and operate it as a conservator in the manner of the Federal Deposit Insurance Corporation. Innocent stakeholders would be protected, thus nullifying Holder's fear-mongering about endangering the world economy.

Thus it requires only a moment's thought to conclude that it is not the size, complexity or fragility of the financial system that stays the hand of criminal prosecution, but the status of the persons within those institutions. Apparently, robbing a bank is a criminal activity depending which side of the teller's window you are on and whether you are upper management or a $12-an-hour cashier. The Senate has given no indication of being overly concerned: After a perfunctory hearing, the Banking Committee favorably reported the Wall Street-connected Mary Jo White to the full Senate for confirmation as chairman of the Securities and Exchange Commission. The dead giveaway that the fix was in was the fact that committee Republicans, who ordinarily obstruct nominees purely out of habit, did not raise a peep of objection. White, like Holder, is not a fan of prosecuting the executives of big banks.

Tier II: The Great Unwashed

Perhaps the big shots are above the law. This does not mean, however, that the mighty wheel of justice does not turn in this country. Somebody must be getting prosecuted, given that the United States has more incarcerated people in its jurisdiction than any other country, including China, which has four times our population. The incarceration rate is no accident: The vast accretion of harsh punishments for essentially victimless crimes like drug possession, mandatory minimum sentences and "three strikes" provisions in many state laws virtually guarantee the highest rate of imprisonment since the days of Stalin's gulags.

Our Congress, acting as an agent of Corporate America, is working assiduously to issue ever more novel and oppressive laws so as to keep the machinery of law enforcement operating. Even the right of possession and free use of an article legally obtained by legitimate purchase, a right celebrated by libertarian economists, can be nullified when corporations deem it necessary to extract rents. Pursuant to the Millennium Digital Copyright Act, it is now illegal to alter a cell phone that you bought and paid for if you are dissatisfied with the service provider that the phone manufacturer has an exclusive agreement with. How illegal? - a $500,000 fine and five years in prison (double for repeat offenders). Apparently citizens no longer have a freehold in this country; they are instead serfs dwelling on a feudal demesne at the sufferance of their corporate landlords.

State legislatures have kept up with Congress in this endeavor. One might think the exposure of animal cruelty and unsanitary conditions in the corporatized farming and food processing industries would cause lawmakers to be indignant against the perpetrators and desirous of protecting the safety of the food supply. But no, state legislatures have directed their fury against the citizen-activists who exposed the wrongdoing by levying heavy penalties against surreptitious photographing of the outrages.

With draconian sentences looming over defendants, it is no wonder that most criminal processes end in plea bargains rather than jury trials: Even an accused person believing himself innocent may plead guilty to lesser charges (charges that still land him in prison, albeit for a shorter term) rather than face either bankrupting legal fees or suffer an incompetent appointed counsel and the possibility of a sentence lasting decades.

Incompetent or not, even the constitutional right of counsel is not always provided, as the attorney general himself has admitted. The big banks, with their extensive in-house legal departments and endless reserves of cash, have no such worries. Their attorneys are skillful enough, and have sufficient resources, to file change-of-venue motions so as to escape the wrath either of unfriendly judges or - one of the worst engines of injustice since the Inquisition - demagogic district attorneys itching for higher office and lusting for juries to inflame. As a practical matter, ordinary citizens have no such protection.

Some officials have conceded the infeasibility of locking up more and more people, perhaps less because of the ethical issues involved than because of the fiscal drain attendant with incarcerating so many bodies. Traditionally a function of the state, prisons represent a large input of taxpayer dollars whose only output, other than license plates, is a social sense of safety and security (an intangible and hard-to-prove value). But Corporate America has come up with an answer to that as well: the private prison industry. In addition to promising security, the growing private prison lobby can offer a much more tangible benefit to politicians: campaign donations. We can be sure that consultants for this industry will invent more and more ingenious felony statutes for state legislatures to pass into law so as to keep their prisons full and profits flowing, as we have already seen happen in Arizona.

Tier III: The Untouchables

Thus far we have dealt with the law: law that is perhaps hatched with malign intent, corruptly enforced and unequally applied, but at any rate law that exists openly in the US Code or the state statutes. But justice for foreigners and discrete categories of American citizens enters the realm of the Wild West, where there is neither law nor redress. Where international treaties may apply, such as the Geneva Convention or treaties against torture, they are assumed not to exist for purposes of official US government conduct.

Should the plaintiff, a group like Amnesty International, say, argue on behalf of injured parties before a United State court, the plaintiff lacks standing because he is not an injured party. Should the injured party himself seek redress, he lacks standing because of his status at the time of the alleged crime. Should all else fail, and the court needs to avail itself of some excuse not to hear the case, it employs the state secrets privilege, a completely fictitious, made-up doctrine deriving from an incident whereby the executive branch, in asserting that classified information would be revealed, committed perjury. There was no classified information, but the rabbinical automatons of the federal judiciary have pretended for the past 50 years that the government's having lied about whether a fatal plane crash involved classified information must henceforth and forever be twisted into a reason why the government's assertions about classified information must always be taken as true, definitive and legally binding.

One suspects a similar morass of dishonesty lies behind the present administration's policy on the use of drones for the purposes of assassination. For instance, in deciding to carry out assassinations, did President Obama or his predecessor go to the trouble of revoking Executive Order 11905, Executive Order 12036, or Executive Order 12333, all of which prohibit assassinations? Or were they merely reinterpreted to mean that a ban on assassination means "not unless you really want to?" Unquestionably the latter, because someone deemed it useful to keep the old executive orders on the books as sacred artifacts one could point to as examples of how virtuous we are - much in the same manner as the Roman curia, ever rife with corruption and intrigue, is charged with regulating the veneration of holy relics.

As for when the policy is to be implemented, the administration has done its best to keep that secret. It has maintained a close hold on the alleged documents describing the policy in detail, but has purposely leaked a white paper that supposedly summarizes the policy. Here one gets a sense of ad hoc improvisation: Since John Brennan and other administration officials had already publicly stated that drone strikes were only used to disrupt "imminent" threats of attack, the white paper appears to have been engineered ex post facto to prevent the administration from being constrained by Brennan's words. In the paper itself "imminent" is gradually redefined over the course of several paragraphs so that it no longer means a criminal action is temporally nigh, but rather inheres in the status of the individual so targeted. Thus are certain persons beneath the law: Their status assumes their intended action, so they are fair game for assassination.

The white paper qualifies this startling legal theory (which is rather similar to the Commissar Order, albeit the shooting occurs at greater distance) by helpfully stating that such operations would not be conducted if civilian casualties would be "excessive." One supposes the definition of the term "excessive" is as elastic as that of "imminent;" in any case unofficial estimates suggest civilian casualties in the thousands, including several hundred children.

One is tempted to conclude that there really is no administration-level drone policy, let alone one constrained by law, except a sham one, which is cobbled together after the fact to construct a plausible justification whenever complaints arise. At the lower level, drone employment is constrained neither by the military code, nor the laws of war nor by any other applicable treaty. It is probably just an intelligence-driven target set applied to a checklist: Does target X-ray fit "terrorist signatures" alpha, bravo, charlie and delta? If the boxes can be checked, the government operative (or contractor) hits the switch.

None of this should be surprising. Since the Moro uprising in the Philippines, American exceptionalism as it operates abroad has been built on hecatombs of corpses. That it doesn't bother the American public should not be surprising given the human capacity for moral compartmentalization. But lawlessness abroad cannot be walled off from domestic life: impunity for oligarchs, draconian sentences and bulging prisons for those lacking privileged status, and casual death for those beneath the law and even innocent people in the vicinity, are at bottom inevitable and inseparable once the rule of law is compromised. Apocryphal perhaps, but the following exchange describes the present American dilemma:

William Roper: So, now you give the Devil the benefit of law!
Sir Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil?
Roper: Yes, I'd cut down every law in England to do that!
More: Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man's laws, not God's! And if you cut them down, and you're just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake!

Copyright, Truthout. May not be reprinted without permission.

Mike Lofgren

Mike Lofgren is a former congressional staff member who served on both the House and Senate budget committees. His book about Congress, The Party is Over: How Republicans Went Crazy, Democrats Became Useless, and the Middle Class Got Shafted, appeared in paperback on August 27, 2013. He is currently writing a book about the sociology of the national security state, to be published in 2015.

Related Stories

Justice May Be Just Around the Bend
By Randall Amster JD, PhD, New Clear Vision | Op-Ed
Criminalizing Immigrants for Profit
By David Bacon, Beacon Press | Book Excerpt
Prisons, Profit and Immigrants in Arizona
By Oscar Leon, The Real News Network | Video Report

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America's Three-Tiered Justice System

Wednesday, 20 March 2013 00:00 By Mike Lofgren, Truthout | News Analysis

Attorney General Eric Holder speaks to reporters at the U.S. Capitol in Washington, June 19, 2012. On March 6, testifying before the Senate Judiciary Committee, Holder indicated that some banks may be too big to prosecute. (Photo: Jonathan Ernst / The New York Times) Attorney General Eric Holder speaks to reporters at the US Capitol in Washington, June 19, 2012. On March 6, testifying before the Senate Judiciary Committee, Holder indicated that some banks may be too big to prosecute. (Photo: Jonathan Ernst / The New York Times) Big shots are above the law, the government now admits, but a three-tiered justice system has Congress churning out new bills to keep the prison industry booming.

"Equal Justice under Law," is the motto inscribed on the frieze of the United States Supreme Court building.

Sticklers for semantics say that the modifiers "equal" and "under law" in the Supreme Court's motto are redundant, because justice by definition is equal treatment under a system of written and publicly accessible rules. Whether that is the case is precisely what is at issue in America today.

Tier I: The Great and the Good

Events since the collapse of Lehman Brothers in September 2008 have provided plenty of fodder for the belief that there is one law for the rich and another for the common clay. Practical as opposed to explicit inequality before the law is common in societies all over the world; it usually boils down to how legal procedures are applied as opposed to what the letter of the law is on the statute books. Officials who are pledged to uphold the law will invariably protest that they are neutral and unimpeachable executors of justice and that it is unthinkable to suggest they are administering a rigged system. Honi soit qui mal y pense! ("Shamed be he who thinks evil of it.") is their usual indignant attitude when the rabble becomes pushy.

It is unclear if there was a rare outbreak of candor among officials in Washington during the past two weeks, or whether they simply calculated that the system has so completely slipped from public control that it doesn't matter if forbidden truths are spoken. On March 6, testifying before the Senate Judiciary Committee, Attorney General Eric Holder stated the following: "I am concerned that the size of some of these institutions becomes so large that it does become difficult for us to prosecute them when we are hit with indications that if you do prosecute, if you do bring a criminal charge, it will have a negative impact on the national economy, perhaps even the world economy." Yes, well, that could explain it. When the banks hold a gun to the head of the economy, it is no longer the relationship between regulator and regulated, but a hostage relationship. A relationship made even more complex, no doubt, by the fact that the hostage-taker is also the principal corporate funder of the bosses of the putative hostage negotiators.

Apparently none of his senatorial interrogators had the wit to ask the following of the attorney general: Why would criminally prosecuting a handful of senior executives at a financial institution be more economically damaging than levying a civil fine? HSBC's $1.9-billion settlement with the Justice Department for money-laundering is almost derisory in view of its $21.9 billion in global profits during the past year, but if anyone is going to suffer from that small subtraction from the bank's revenues, it is likely to be shareholders and depositors who had nothing to do with the crime rather than the management who committed it. And even in an extreme situation, where most or all of a bank's management were criminally involved, the government could seize the bank and operate it as a conservator in the manner of the Federal Deposit Insurance Corporation. Innocent stakeholders would be protected, thus nullifying Holder's fear-mongering about endangering the world economy.

Thus it requires only a moment's thought to conclude that it is not the size, complexity or fragility of the financial system that stays the hand of criminal prosecution, but the status of the persons within those institutions. Apparently, robbing a bank is a criminal activity depending which side of the teller's window you are on and whether you are upper management or a $12-an-hour cashier. The Senate has given no indication of being overly concerned: After a perfunctory hearing, the Banking Committee favorably reported the Wall Street-connected Mary Jo White to the full Senate for confirmation as chairman of the Securities and Exchange Commission. The dead giveaway that the fix was in was the fact that committee Republicans, who ordinarily obstruct nominees purely out of habit, did not raise a peep of objection. White, like Holder, is not a fan of prosecuting the executives of big banks.

Tier II: The Great Unwashed

Perhaps the big shots are above the law. This does not mean, however, that the mighty wheel of justice does not turn in this country. Somebody must be getting prosecuted, given that the United States has more incarcerated people in its jurisdiction than any other country, including China, which has four times our population. The incarceration rate is no accident: The vast accretion of harsh punishments for essentially victimless crimes like drug possession, mandatory minimum sentences and "three strikes" provisions in many state laws virtually guarantee the highest rate of imprisonment since the days of Stalin's gulags.

Our Congress, acting as an agent of Corporate America, is working assiduously to issue ever more novel and oppressive laws so as to keep the machinery of law enforcement operating. Even the right of possession and free use of an article legally obtained by legitimate purchase, a right celebrated by libertarian economists, can be nullified when corporations deem it necessary to extract rents. Pursuant to the Millennium Digital Copyright Act, it is now illegal to alter a cell phone that you bought and paid for if you are dissatisfied with the service provider that the phone manufacturer has an exclusive agreement with. How illegal? - a $500,000 fine and five years in prison (double for repeat offenders). Apparently citizens no longer have a freehold in this country; they are instead serfs dwelling on a feudal demesne at the sufferance of their corporate landlords.

State legislatures have kept up with Congress in this endeavor. One might think the exposure of animal cruelty and unsanitary conditions in the corporatized farming and food processing industries would cause lawmakers to be indignant against the perpetrators and desirous of protecting the safety of the food supply. But no, state legislatures have directed their fury against the citizen-activists who exposed the wrongdoing by levying heavy penalties against surreptitious photographing of the outrages.

With draconian sentences looming over defendants, it is no wonder that most criminal processes end in plea bargains rather than jury trials: Even an accused person believing himself innocent may plead guilty to lesser charges (charges that still land him in prison, albeit for a shorter term) rather than face either bankrupting legal fees or suffer an incompetent appointed counsel and the possibility of a sentence lasting decades.

Incompetent or not, even the constitutional right of counsel is not always provided, as the attorney general himself has admitted. The big banks, with their extensive in-house legal departments and endless reserves of cash, have no such worries. Their attorneys are skillful enough, and have sufficient resources, to file change-of-venue motions so as to escape the wrath either of unfriendly judges or - one of the worst engines of injustice since the Inquisition - demagogic district attorneys itching for higher office and lusting for juries to inflame. As a practical matter, ordinary citizens have no such protection.

Some officials have conceded the infeasibility of locking up more and more people, perhaps less because of the ethical issues involved than because of the fiscal drain attendant with incarcerating so many bodies. Traditionally a function of the state, prisons represent a large input of taxpayer dollars whose only output, other than license plates, is a social sense of safety and security (an intangible and hard-to-prove value). But Corporate America has come up with an answer to that as well: the private prison industry. In addition to promising security, the growing private prison lobby can offer a much more tangible benefit to politicians: campaign donations. We can be sure that consultants for this industry will invent more and more ingenious felony statutes for state legislatures to pass into law so as to keep their prisons full and profits flowing, as we have already seen happen in Arizona.

Tier III: The Untouchables

Thus far we have dealt with the law: law that is perhaps hatched with malign intent, corruptly enforced and unequally applied, but at any rate law that exists openly in the US Code or the state statutes. But justice for foreigners and discrete categories of American citizens enters the realm of the Wild West, where there is neither law nor redress. Where international treaties may apply, such as the Geneva Convention or treaties against torture, they are assumed not to exist for purposes of official US government conduct.

Should the plaintiff, a group like Amnesty International, say, argue on behalf of injured parties before a United State court, the plaintiff lacks standing because he is not an injured party. Should the injured party himself seek redress, he lacks standing because of his status at the time of the alleged crime. Should all else fail, and the court needs to avail itself of some excuse not to hear the case, it employs the state secrets privilege, a completely fictitious, made-up doctrine deriving from an incident whereby the executive branch, in asserting that classified information would be revealed, committed perjury. There was no classified information, but the rabbinical automatons of the federal judiciary have pretended for the past 50 years that the government's having lied about whether a fatal plane crash involved classified information must henceforth and forever be twisted into a reason why the government's assertions about classified information must always be taken as true, definitive and legally binding.

One suspects a similar morass of dishonesty lies behind the present administration's policy on the use of drones for the purposes of assassination. For instance, in deciding to carry out assassinations, did President Obama or his predecessor go to the trouble of revoking Executive Order 11905, Executive Order 12036, or Executive Order 12333, all of which prohibit assassinations? Or were they merely reinterpreted to mean that a ban on assassination means "not unless you really want to?" Unquestionably the latter, because someone deemed it useful to keep the old executive orders on the books as sacred artifacts one could point to as examples of how virtuous we are - much in the same manner as the Roman curia, ever rife with corruption and intrigue, is charged with regulating the veneration of holy relics.

As for when the policy is to be implemented, the administration has done its best to keep that secret. It has maintained a close hold on the alleged documents describing the policy in detail, but has purposely leaked a white paper that supposedly summarizes the policy. Here one gets a sense of ad hoc improvisation: Since John Brennan and other administration officials had already publicly stated that drone strikes were only used to disrupt "imminent" threats of attack, the white paper appears to have been engineered ex post facto to prevent the administration from being constrained by Brennan's words. In the paper itself "imminent" is gradually redefined over the course of several paragraphs so that it no longer means a criminal action is temporally nigh, but rather inheres in the status of the individual so targeted. Thus are certain persons beneath the law: Their status assumes their intended action, so they are fair game for assassination.

The white paper qualifies this startling legal theory (which is rather similar to the Commissar Order, albeit the shooting occurs at greater distance) by helpfully stating that such operations would not be conducted if civilian casualties would be "excessive." One supposes the definition of the term "excessive" is as elastic as that of "imminent;" in any case unofficial estimates suggest civilian casualties in the thousands, including several hundred children.

One is tempted to conclude that there really is no administration-level drone policy, let alone one constrained by law, except a sham one, which is cobbled together after the fact to construct a plausible justification whenever complaints arise. At the lower level, drone employment is constrained neither by the military code, nor the laws of war nor by any other applicable treaty. It is probably just an intelligence-driven target set applied to a checklist: Does target X-ray fit "terrorist signatures" alpha, bravo, charlie and delta? If the boxes can be checked, the government operative (or contractor) hits the switch.

None of this should be surprising. Since the Moro uprising in the Philippines, American exceptionalism as it operates abroad has been built on hecatombs of corpses. That it doesn't bother the American public should not be surprising given the human capacity for moral compartmentalization. But lawlessness abroad cannot be walled off from domestic life: impunity for oligarchs, draconian sentences and bulging prisons for those lacking privileged status, and casual death for those beneath the law and even innocent people in the vicinity, are at bottom inevitable and inseparable once the rule of law is compromised. Apocryphal perhaps, but the following exchange describes the present American dilemma:

William Roper: So, now you give the Devil the benefit of law!
Sir Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil?
Roper: Yes, I'd cut down every law in England to do that!
More: Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man's laws, not God's! And if you cut them down, and you're just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake!

Copyright, Truthout. May not be reprinted without permission.

Mike Lofgren

Mike Lofgren is a former congressional staff member who served on both the House and Senate budget committees. His book about Congress, The Party is Over: How Republicans Went Crazy, Democrats Became Useless, and the Middle Class Got Shafted, appeared in paperback on August 27, 2013. He is currently writing a book about the sociology of the national security state, to be published in 2015.

Related Stories

Justice May Be Just Around the Bend
By Randall Amster JD, PhD, New Clear Vision | Op-Ed
Criminalizing Immigrants for Profit
By David Bacon, Beacon Press | Book Excerpt
Prisons, Profit and Immigrants in Arizona
By Oscar Leon, The Real News Network | Video Report

Hide Comments

blog comments powered by Disqus