The students I teach in prison who have the longest sentences are, almost without exception, the ones who demanded a jury trial. If everyone charged with a crime had a jury trial, the court system would implode. Prosecutors, defense attorneys and judges use those who insist on a jury trial – often people who did not commit the crime with which they were charged – as examples. Their sentences, frequently life sentences, are grim reminders as to why it is in the best interests of a defendant, even if he or she did not commit the crime, to take a plea agreement. Ninety-four percent of state-level felony convictions and 97 percent of federal felony convictions are the result of guilty pleas. And studies by groups such as Human Rights Watch confirm the punitive nature of jury trials: Those who go to jury trials get an addition 11 years, on average, tacked on to their sentences. The rich get high-priced lawyers and lengthy jury trials. The poor are shipped directly to jail or prison.
The corrosion of the moral authority of the legal system has ominous implications as we veer closer and closer to despotism. It is an example of one of the fundamental precursors of tyranny, as political theorist Hannah Arendt pointed out in her book “On Violence.” Arendt wrote that “power and violence are opposites: where one rules absolutely, the other is absent.” When institutions such as the judicial system break down and lose legitimacy, their moral authority is destroyed. To fill the moral vacuum these institutions turn exclusively to violence. “Violence,” Arendt wrote, “appears where power is in jeopardy.” Violence is no longer an expression of power. Rather, violence and coercion, which disregard any semblance of justice, are the only mechanism left to exert social control. Trust and respect for the rule of law is replaced by fear. And as Arendt warned, “Violence can destroy power; it is utterly incapable of creating it.” The court system collapse now afflicting the poor is working its way like gangrene up the body of the judiciary. Violence is increasingly the only tool left to a discredited corporate state and its bankrupt ideology of unfettered capitalism. What is being done to the poor will soon be done to all of us.
If you are poor, this is how the system works.
First, you get picked up for a crime you may or may not have committed. The police have broad legal tools, such as RICO – the Racketeer Influenced and Corrupt Organizations Act of 1970 – that allow them to charge everyone whom they define as a member of a gang or other group involved in crime. Some of those charged may not have been involved in any way in the commission of the crime. One of my students, for example, was in a room with several other people during a drug deal that went bad. A man pulled a handgun and killed another man. My student did not own a gun. He had no part in the murder. He did not know the killer or the victim. But he went to prison under a plea deal calling for 11 years, losing his job and leaving his son, whom he was raising alone, to the streets. He is out now. His son is in prison. Our prisons are filled with people like him – poor, black and unfortunate enough to be in the wrong place at the wrong time.
Police don’t have the time, resources or inclination to investigate most homicides. To close a case, what they need is a suspect, or suspects. Suspects always receive several other charges, such as kidnapping, that carry long sentences, in addition to the main charge. It does not matter whether they kidnapped someone. That is not the point. The point is to give them so many charges that they are looking at a virtual life sentence. This makes the reduced sentence offered in a plea agreement very attractive. Since poor people often cannot afford bail, they sit in a county jail for months and often years before trial, adding to the pressure to accept a plea agreement. If they are young and do not have an outside support system, they can easily be worn down and made to sign a confession. This happened to a student of mine who was 14 years old and who lived on the streets after his stepfather beat his mother to death in front of him. He was pressured into signing a confession to a murder in Camden, N.J., he says he did not commit. The police, he said, told him if he signed he would be released. Like many on the street, he was functionally illiterate and could not read what he signed. He spent two years in the county jail and then went to trial, where, even though he was 16, he was tried as an adult. He is not eligible for parole until he is 70. He has no money for an appeal. He was fined $10,000 when he was convicted, a sum that he is slowly paying off out of his prison salary of $28 a month. He is 40 years old. He still owes the state of New Jersey $6,000.
Secondly, you are assigned a court-appointed lawyer. This lawyer is so overworked he or she does not have the time to investigate the case and mount a credible defense. The lawyer’s real function is as a negotiator with the prosecutor for a plea agreement. A plea agreement, always carried out in secret, means the prosecutor will drop some of the charges. A plea agreement reduces the time in prison significantly, often by half. Go to court, you are warned, and you will face all the charges. The pressure to plead out is effective and intense, which is why most people, even those who did not commit the crime, plead guilty. Since nearly all cases are settled with plea agreements, the public, from which a jury would be selected, is blocked from seeing the travesty our judicial system has become.
A jury trial for the poor is a farce. Court-appointed attorneys sometimes spend only 15 minutes with clients. They often show up at trial unprepared. Prosecutors in many states are allowed to wait until the start of a trial to share evidence. This means that many people are pressured into guilty pleas although the prosecutors have little or no evidence that they committed the crime. It also means the defense has no way to prepare a response.
I had a student in prison who had been on an Army boxing team. He was preparing to go professional. He was charged with a homicide in Elizabeth, N.J. He says he was not in the city at the time of the killing. He refused to take a plea deal of 16 months. He went to court. His public defender told him to plead self-defense. He refused. This was a good decision because it came out in the trial that the victim was shot in the back. How did he get convicted? A few drug addicts, who were tidied up and given hotel rooms and some cash by the police, testified they saw him do it. He got 30 years.
“We sat in the courtroom in shock,” his mother told me. “It was transparent to everyone in the room the drug addicts were lying.”
The judicial system never has been fair to the poor, especially poor people of color. But its propensity for injustice has been expanded over the past three decades, as Michelle Alexander illustrated in her book “The New Jim Crow.” The number of crimes, especially on the federal level, that people can be charged with has exploded. There were once only three named federal criminal acts: treason, piracy and counterfeiting. Today there are thousands. The law as an instrument of morality at the state and federal levels has been deformed into an instrument of racialized social control. It imposes legal duties on the poor and then imprisons them for not carrying out those duties. For example, if someone in the room where the drug dealer was killed had immediately called the police and reported the crime, a virtual death sentence in a poor community, he or she would be exonerated. Refuse to call and you get charged with murder. Even the courts don’t pretend that many of those with murder convictions actually carried out a homicide.
If someone wants to file an appeal, it costs $100,000. Poor people don’t have access to that kind of money. Appeals are usually handled by other prisoners who work as paralegals in the prison. In the case of the boxer it was different. His parents took their entire $150,000 retirement savings and hired a lawyer and private investigator. They went to court armed with depositions from the drug users who had testified against their son saying they had lied. It made no difference. He is still in prison. And his mother – his father has since died – is living in poverty, having exhausted her savings trying to save her son.
“My mother,” he told me, “never understood the system is a sham.”
The carcel state – composed of 1,719 state prisons, 102 federal prisons, 901 juvenile correctional facilities, 3,163 local jails and 76 Indian Country jails, along with military prisons, immigration detention facilities, civil commitment centers, and prisons in the U.S. territories—is a subculture unto itself, with an $81 billion budget and tremendous political clout. We spend a total of $265 billion on federal, state and local corrections and the police and court systems. The two main political parties compete to see which can be “tougher” on crime. Congress enacted 92 death-eligible crimes from 1974 to 2010. A first-time drug offense in the United States can lead to a life sentence. I taught a student who had been given a life sentence plus 154 years for weapons possession and drugs. He had never been charged with a violent crime. These kinds of sentences are unheard of in most of the industrial world. They are common in despotic states such as China and the Philippines, states we increasingly resemble. There are now 65 million people in the United States who because of past convictions make up a criminal caste that is denied things ranging from public housing to the right to vote. There are 7 million controlled by parole and probation officers. We have the highest rate of incarceration in the world. These numbers will, as our society unravels, go up.
The judicial system in recent years has been cruelly refined to close the tiny windows that offer any hope of reprieve to the 2.3 million people we lock away in cages. The courts routinely reduce sentences if the defendant gives up his or her right to an attorney and signs a waiver prohibiting him or her from filing an appeal. This bargaining tactic strips defendants of any legal protection.
Corporations have taken over larger and larger segments of prison life, from food service to money transfers, commissaries and phone communications. A million prisoners work for corporations in prison and are often paid under a dollar an hour. Prisoners and their families are exploited for billions in corporate profits. Corporate lobbyists sponsor legislation to make sure this captive population remains captive. Black and brown bodies on the streets of our cities do not bring in revenue for these corporations; behind bars they each generate $40,000 to $50,000 a year.
Deindustrialization left hundreds of thousands of black people in urban areas without work. Their communities decayed and collapsed. Crimes rates rose. The social disintegration was accompanied by harsher forms of social control, militarized police and mass incarceration. But the cause of this social disintegration, as sociologists such as William Julius Wilson have pointed out, has been ignored. As the rot of deindustrialization spreads across the country, the experience of people of color—the lowest stratum in the hierarchy of classes – will become normalized. Once rights become privileges for any segment of a population, as Arendt pointed out, they can be revoked for the rest of the population. We have built a terrifying legal and policing apparatus that has placed the poor of our nation, victims of corporate pillage, in bondage. This system is creeping outward to cement into place an American tyranny.