The Weapons of War

excerpted from the book

The Perpetual Prisoner Machine

How America Profits From Crime

by Joel Dyer

Westview Press, 2001, paper

p153
Supreme Court Justice Anthony Kennedy, 1994
I think I am in agreement with most of the judges in the federal system that mandatory minimums are an imprudent, unwise and often unjust mechanism for sentencing.

p153
By the beginning of the 1970s, most states had begun to build at least a few new prisons, and state legislatures were strengthening their sentencing guidelines in response to an increase in crime that had occurred during the 1960s. These early anticrime measures increased the nation's prison population by approximately 200,000 by 1980. Although they seemed impressive at the time, compared with what was to transpire in the mid-1980s, these early measures paled in significance.

In response to public opinion polls, which by 1983 had begun to reflect a societal crime anxiety due to "crime-gap" myths and the media's violent content, politicians set about to create legislation that would turn this public fear into votes. They succeeded in 1984 with the passage of the Sentencing Reform Act, which was the most significant salvo fired in the modern war on crime to date. David Kopel, respected author and research director of the Independence Institute, has called this piece of hard-on-crime legislation "the most significant change in sentencing policy in American history."

The 1984 act abolished parole in the federal system and allowed the Sentencing Commission to radically alter the established sentencing guidelines in favor of much harsher and longer sentences that the federal courts were then required to follow without exception. The 700 pages of guidelines created as a result of the act effectively returned

\J America to the same type of long and certain sentences that it had abandoned nearly 100 years earlier because they were found to be ineffective, overly costly, and unjust and made prisons extremely dangerous places for both inmates and guards.

Subsequent to the abandonment of sentences with a predetermined length in the late 1800s, the United States had avoided mandatory sentences, with the exception of those enacted in the 1950s as a means to combat narcotics. But by 1970, even these few remaining mandatory sentences had been found to be quite flawed and were repealed by Congress. As a portent of the manner in which the rise in influence of the consultants would alter politics in the last two decades of the twentieth century, then congressman George Bush-who, at the urging of his hired handlers, would later use the hard-on-crime Willie Horton ads to defeat Michael Dukakis in the 1988 presidential election-adamantly opposed mandatory sentencing.

In 1970, Bush described his reasons for voting for the bill that eliminated such sentences.

Contrary to what one might imagine, however, this bill will result in better justice and more appropriate sentences.... Federal judges are almost unanimously opposed to mandatory minimums, because they remove a great deal of the courts discretion.... As a result [of repealing mandatory minimums] we will undoubtedly have more equitable action by the courts, with actually more convictions where they are called for, and fewer disproportionate sentences.

Just eighteen years after uttering these words in opposition to mandatory minimums, Bush would conveniently reshape his political ideology to public opinion so thoroughly as to lead the way in establishing new mandatory sentences while simultaneously declaring his opponent Dukakis, to be a "soft-on-crime" liberal, even though Dukakis, in essence had put forward a position on crime that was very similar to the one Bush himself had claimed to hold prior to his presidential aspirations.

With the ability of judges to determine sentences greatly impaired by the passage of the 1984 Sentencing Reform Act, the prison population began to swell at a rate never before seen. Despite its being hailed as a tool to combat violent crime, in reality, the 700 pages of new sentencing guidelines turned out to be primarily aimed at minor regulatory offenses. In his writings, Kopel has used several examples to illustrate this last point, including the fact that under the new sentencing structure some types of gambling drew longer prison terms than manslaughter; a person entering the United States illegally was punished with the same sentence as a person convicted of abusive sexual assault that puts a child in fear; and aggravated assault had the same sentence as smuggling a certain dollar value of fish. The illogical guidelines created by the Sentencing Reform Act are rife with such disparities between violent and nonviolent crimes, and as a result, they are much more efficient at filling our prisons with nonviolent offenders than they are at taking violent predators off the street. For the first time since our poorly thought out attempt at prohibition, there are now more nonviolent criminals in our prisons than violent ones.

Despite the obvious flaws of these sentence reforms, Congress wasn't about to back away from its new creation. It had found a powerful campaign tool in the Sentencing Reform Act. Everyone who even remotely questioned the wisdom of the new guidelines or the resulting explosion in the nonviolent prison population was quickly labeled "soft on crime." Judges, the vast majority of whom, as noted by Congressman Bush in 1970, opposed the guidelines for a number of valid reasons, were quickly saddled with the "soft-on-crime" moniker, as illustrated in the statement by Senator Orrin Hatch at the beginning of this chapter.

By the late 1980s, thanks largely to "crime-gap" propaganda and increasingly violent TV content, the public began to show overwhelming support for tough-talking politicians who promised them more public safety. They also exhibited an equal disdain for the judges and elected leaders who had been branded by the new "soft-on-crime" McCarthyism. And if there were any who still doubted the career-ending power of the "soft-on-crime" label, Dukakis's destruction at the hands of the Bush consultants in 1988 would erase that doubt for years to come.

p156
As a result of the political success of the Sentencing Reform Act, Congress decided to turn the anticriminal rhetoric up a few notches in the form of congressional mandatory sentences that would allow politicians to take still more credit for fighting violent crime, a handy claim come election time. Not only has Congress passed more than a hundred of these mandatory sentences, but it has made sure that the new sentencing structure supersedes all other sentencing guidelines. Based on the manner in which many current policy decisions regarding crime are being made-namely, through polling and campaign finance-it is fair to say that concerning the sentencing process, thanks to Congress, judges have all but been replaced by the public's exaggerated perception of being victimized by crime and the desires of corporations that wish to profit from a growing prison population.

Like the 700 pages of guidelines established as a result of the 1984 Sentencing Reform Act, these new, even harsher, mandatory sentences passed by Congress have been touted as a tool to fight the violent crime that is supposedly overwhelming our communities as a result of drug use. But in application, Congress's new sentences, like those created in 1984, have resulted in the incarceration of hundreds of thousands of nonviolent offenders but have had little or no effect on those who commit violent acts. In fact, many observers of the criminal justice system now believe that Congress's tinkering with sentencing standards has made it increasingly difficult to find room in our overcrowded prison system for the violent offenders the public is truly concerned about.

p157
... 40,000 inmates- one-fourth of California's entire prison population ... have been sentenced under that state's three-strikes law.

p160
A full 70 percent of all three-strikes prosecutions in California have been for nonviolent and non-serious offenses. In Los Angeles County, it's even worse. Only 4 percent of those convicted under the three-strikes law have committed a crime of violence.

p160
The fiscal realities of three strikes are only now beginning to sink in on the politicians and voters who jumped on the hard-on-crime bandwagon following the Klaas murder. It costs $25,000 a year to incarcerate a young inmate. As a prisoner sentenced to life ages, the price tag increases, nearly tripling to $70,000 a year for inmates over the age of fifty-five. A Stanford University study estimates that the total cost for an average life sentence in California is around $1.5 million. That's a lot of taxpayer money when you consider that 70 percent of those life sentences are being doled out for nonviolent offenses such as a man stealing a $5 piece of meat to feed his hungry dependents. The study predicted that if the prison population increases as expected for the next twenty years or so, California's three-strikes law will cost that state's taxpayers hundreds of billions-not millions, but billions-of dollars.

California has become the case study for three strikes because it has implemented its three-strikes law more liberally than those jurisdictions that have followed in its hard-on-crime footsteps. The California Department of Corrections estimates that California will be forced to spend $6.7 billion a year to fully implement the three-strikes law. This is more than five times the original estimate that was presented to taxpayers.(And as we will see later in the book,)such incredible expenditures by California's Department of Corrections have devastated the rest of the state's budget, including the areas of education and other crime-preventing social programs.

p162
According to the National Association of Criminal Defense Lawyers (NACDL):

states such as California that rushed to enact broad "three strikes" laws, are now finding that their judicial and prison systems-to say nothing of their state and local budgets-are being strained past the breaking point by the huge volume of cases resulting from these laws . . . we caution state legislators and voters against hastily adopting broad "three strikes" laws without carefully examining their inherently debilitating impact on courts, prisons, budgets, law-enforcement and prison officials, and particularly on nonviolent offenders for whom life in prison would be a profoundly unfair punishment.

As noted in the defense attorney's warning, the impact of three strikes on a state's court system can also be quite significant. Since being convicted three times equals a potential life sentence, suspects are no longer willing to accept plea bargains in exchange for a guilty plea. They now prefer to take their chances in front of a jury. Prior to three strikes, 94 percent of all cases in California were handled through plea bargaining. After three strikes, only 14 percent of those faced with a second strike and only 6 percent of those facing a third strike have sought a plea agreement. According to California's Legislative Analyst's Office, jury trials in that state have increased by 150 to 300 percent in most counties as a result of three strikes. Not only does this radically increase the court cost to taxpayers, but it has also resulted in extreme overcrowding in the county jail systems, where suspects are held awaiting their trial.

p171
The Death Penalty
In 1976, the Supreme Court decided that after decades of living without capital punishment, which had been found to be a cruel and unusual punishment, the United States could once again begin executing criminals. The return to the death penalty is perhaps the least logical of all hard-on-crime policies. Study after study has shown that it does not work as a deterrent to murder; that it has resulted in extradition problems, as most civilized nations will not extradite individuals accused of murder to the United States because their laws prohibit turning over suspects who might be put to death; and that with a price tag of a couple of million dollars per execution, it would be far more economical to use life without parole as the "ultimate" sentence. These are the most basic arguments against the death penalty. They do not even take into consideration the morality of execution or the fact that we occasionally kill innocent people or that we tend to only execute poor people, mostly blacks, or that some executions are more driven by polls than by the quest for justice.

Yes, "driven by polls." In the broadest sense, this is true because, as we have seen, our hard-on-crime policies have their roots in public opinion polls, but it is also true in the most specific, grotesque sense as well. In an article titled "Judges and the Politics of Death: Deciding Between the Bill of Rights and the Next Election in Capital Cases," which appeared in the 1995 Boston University Law Review, authors Stephen Bright and Patrick Keenan described how in most states that have the death penalty, judges must stand for reelection. The two went on to clearly demonstrate that death sentences are often doled out as a means of achieving political popularity.

Writing for the Atlantic Monthly in 1998, Christopher Hitchens concurred with this opinion, noting that judges around the country make some of their capital-punishment decisions in the same manner that Bill Clinton made his mind up about the execution of Ricky Ray Rector, an inmate who had been sentenced to death despite the fact that he was severely retarded. Clinton refused to commute Rector's sentence after poll results showed that it would be more politically expedient to allow the execution to continue, regardless of Rector's mental disability.

Such a reality becomes all the more disturbing when one starts to examine the demographics of execution. It's fair to say that our ultimate penalty has been reserved almost exclusively for the poor and primarily for those of color. In places like Harris County, Texas, one young black man after another is being put down as if an epidemic had broken out in a livestock pen. This single county that contains most of Houston executed more than thirty people in 1997 alone. Across the nation, seventy-four people were executed in that same year. Ironically, that's almost the exact number of innocent people-seventy-seven, as of February 1999-who have been released from death row since 1976.39

So just how sure are we that those whom we execute are guilty? Not very. The state of Illinois, for instance, is only batting 500. Since 1976, that state has executed twelve, while being forced to release twelve innocent men from death row. The average length of time needed for a person to be proven innocent on death row is between six and ten years, but many cases take considerably longer. It took Hayes Williams thirty years to finally prove his innocence in Louisiana in 1997. Dennis Fritz sat on death row in Oklahoma for twelve years before being released after DNA testing linked another man to the murder he had been found guilty of committing. Other such stories are similar-fifteen years here, a dozen there.

The only chance that most death-row inmates have to prove their innocence is habeas corpus. As I said, this process usually takes around six years. But even this relief for the innocent has been rendered impotent by hard-on-crime proponents whose polls tell them that Americans want to speed up the execution process. In response to such polls, Bill Clinton has given us the Counter-Terrorism and Effective Death Penalty Act, which practically eliminates the right of habeas corpus by shortening the process to one year. Gene Nichol, dean of the University of Colorado Law School, calls the act "the most serious restriction on habeas corpus protections in half a century." Had Clinton's "hard-on-habeas" act been in place since 1976, seventy innocent men would now likely have been put to death rather than having been set free.

We have been told that shortening the period for habeas corpus will stamp the word "reduced" on the $2 million price tag for snuffing a criminal. Several states, including Florida and Texas, have passed legislation to speed up the execution process because they claim that in its current condition, it costs too much to implement. In fact, saving money, not justice, seems to be at the heart of most of the current death-penalty decisions.

The number-one reason that innocent people have been freed from death row in recent years is DNA testing. Unfortunately, DNA testing cost about $10,000 a pop, a price apparently too high for the justice system. Even though states are willing to spend millions to execute an inmate, most requests by the condemned for DNA testing are refused because of the costs. So just at the time when technology is making it possible to find some of those on death row who are innocent, the government is hell-bent on killing them before their innocence can be established.

In this same save-money, forget justice vein, in May 1999, Nebraska governor Mike Johanns vetoed a measure that would have placed a two-year moratorium on that state's executions, pending an investigation into allegations that the death penalty is being applied unfairly to a disproportionate number of poor and minority offenders. Johanns said that he vetoed the measure because it could have been used as a basis for unnecessary appeals that are time-consuming and expensive. What is troubling here is that such appeals would only have come about if the allegation were proven to be true by the research that would have been conducted during the moratorium, and if that were the case, then the new round of appeals would hardly be "unnecessary." Once again, saving money on the death penalty seems to have trumped the concept of justice. And if we take a step backward, we can see that economics also plays an important role during the trial of those who find themselves on death row.

Sadly, to get to death row, it seems that you have to go through a court-appointed attorney. As I mentioned earlier, low-income defendants are twice as likely to be found guilty as defendants with high incomes. This is not a knock on public defenders, but rather on the system itself. Low-income suspects who can't afford an attorney get one appointed by the courts, but that's about all they get. The courts rarely supply enough money for the appointed defense attorney to properly investigate the crime or to spend the necessary amount of time on the case to adequately represent a client. It's not unusual for a public defender to handle about four times the case load recommended by the bar.

Experience is another factor with public defenders. In Harris County, Texas, for example, death-penalty cases-which any attorney worth his or her salt will tell you require a specific expertise-are assigned to whatever public defender is available. In a Harris County murder case I was reviewing in 1996, it turned out that the court-appointed attorney had never handled a murder case. In fact, the attorney had been practicing contract law prior to being assigned this death penalty case. Let's just say he did a less than stellar job with the defense and that his client is now on death row, despite substantial evidence of police wrongdoing.

The economics of such cases is the reason that in recent years, law students working on class projects at universities have been able to show that several death-row inmates were indeed innocent. The students have been able to go back to the crime scene and find witnesses whom the police apparently overlooked. If adequate funding for investigators had been made available to experienced lawyers at the time of the trial, the innocent defendants, who have been freed years after their arrests, would likely never have been incarcerated in the first place. It is exactly because low-income suspects get such poor representation at the time of their trial that the appeals process is so important. And now our hard-on-crime politicians are streamlining the appeals process in the name of saving money. It's no wonder that civilized nations refuse to turn over murder suspects to the United States.

It suffices to say that if the death penalty cannot be dispensed with equity and absolute certainty of guilt, it should not be dispensed at all. I believe that most Americans would agree with this principle. Then why do polls continue to show support for the death penalty in light of the fact that these basic parameters are clearly not being met? It's simple: Americans only hear one side of the story. The media and our elected officials rarely discuss the inequalities between rich and poor within our justice system. In fact, less than 3 percent of all crime coverage ever examines the court proceedings in a case. Instead, the media choose to focus nearly entirely on the sensational aspects of a murder that generate profit. Obviously, after being bombarded with one emotional bloody image after another, coupled with heart-wrenching testimonies by a victim's loved ones, it is nearly impossible for the public to be in any way concerned about those accused of such heinous crimes, even if it means that innocent people are occasionally executed.

The death penalty, three strikes, mandatory sentences, truth in sentencing-these are only some of the weapons in the war on crime, a war that most Americans believe is being waged against violent crime. But if stopping violent crime is truly the goal of this war, then those in charge are using the wrong weapons to fight it. You would think that if the military can go out of its way to target a foreign enemy like Iraq with "smart bombs" in an effort to cut down on collateral damage, our elected officials would have the wisdom to do the same in their domestic war on violent crime. But today's weapons, which our leaders have told us were designed to combat violent crime, are anything but "smart." They destroy entire demographic groups with the lack of discernment of a nuclear blast.

The Perpetual Prisoner Machine

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