Perspectives on American Criminal Law

This week, I have tried to take a larger perspective on why we see so many instances of prosecutorial and judicial misconduct, as we saw in the Tonya Craft case. This case did not happen in a vacuum, and it was the product of a number of developments that have been occurring for a long time. While her acquittal kept her from prison, in the long run so far it has solved no other problems, and it is these problems that need to be addressed.

In a recent article on U.S. law, The Economist presents a scathing picture of an incarceration and conviction system that is out of control, to put it mildly. The article begins with the arrest and imprisonment of a man who was accused of "smuggling orchids":

THREE pickup trucks pulled up outside George Norris’s home in Spring, Texas. Six armed police in flak jackets jumped out. Thinking they must have come to the wrong place, Mr Norris opened his front door, and was startled to be shoved against a wall and frisked for weapons. He was forced into a chair for four hours while officers ransacked his house. They pulled out drawers, rifled through papers, dumped things on the floor and eventually loaded 37 boxes of Mr Norris’s possessions onto their pickups. They refused to tell him what he had done wrong. “It wasn’t fun, I can tell you that,” he recalls.

Mr Norris was 65 years old at the time, and a collector of orchids. He eventually discovered that he was suspected of smuggling the flowers into America, an offence under the Convention on International Trade in Endangered Species. This came as a shock. He did indeed import flowers and sell them to other orchid-lovers. And it was true that his suppliers in Latin America were sometimes sloppy about their paperwork. In a shipment of many similar-looking plants, it was rare for each permit to match each orchid precisely.

In March 2004, five months after the raid, Mr Norris was indicted, handcuffed and thrown into a cell with a suspected murderer and two suspected drug-dealers. When told why he was there, “they thought it hilarious.” One asked: “What do you do with these things? Smoke ’em?”

Prosecutors described Mr Norris as the “kingpin” of an international smuggling ring. He was dumbfounded: his annual profits were never more than about $20,000. When prosecutors suggested that he should inform on other smugglers in return for a lighter sentence, he refused, insisting he knew nothing beyond hearsay.

He pleaded innocent. But an undercover federal agent had ordered some orchids from him, a few of which arrived without the correct papers. For this, he was charged with making a false statement to a government official, a federal crime punishable by up to five years in prison. Since he had communicated with his suppliers, he was charged with conspiracy, which also carries a potential five-year term.

As his legal bills exploded, Mr Norris reluctantly changed his plea to guilty, though he still protests his innocence. He was sentenced to 17 months in prison. After some time, he was released while his appeal was heard, but then put back inside. His health suffered: he has Parkinson’s disease, which was not helped by the strain of imprisonment. For bringing some prescription sleeping pills into prison, he was put in solitary confinement for 71 days. The prison was so crowded, however, that even in solitary he had two room-mates.

If this seems barbaric, it is because it is, yet I suspect that at least some readers here and certainly most prosecutors (and politicians) have no problem at all with what they have seen. In the last decade, Americans have become angrier and, frankly, darker in their outlook, and it is reflected in the use of torture and false imprisonment and outright abuse of the innocent. There is a streak of fairness in many Americans, but it is hidden by the sheer force of official misconduct.

An interview with now-pardoned Richard Paey, a wheelchair-bound man in Florida who was sentenced to 25 years in prison for "abusing" prescription medicine, reveals the extent of the abuse and the outright misconduct that is our "justice" system today. Here are some excerpts:

In October of this year (2007), Florida Gov. Charlie Crist signed a pardon for Richard Paey, a paraplegic with multiple sclerosis who had served nearly four years of a 25-year prison sentence for drug trafficking. Paey, who requires high-dose opioid therapy to treat pain brought on by his MS, a car accident, and a botched back surgery, was convicted of trafficking despite concessions from prosecutors that there was no evidence the painkillers in his possession were for anything other than his own use. When police came to arrest the wheel-chair bound Paey, they came with a full-on SWAT team, battering down the door and rushing into the home of the wheelchair-bound Paey, his optometrist wife, and their two schoolage children.

Prosecutors offered Paey a plea bargain, but he refused, insisting that he’d done nothing wrong, and that he shouldn’t have to plead guilty to a felony for treating his own pain. Paey was tried, convicted, and given a 25-year mandatory minimum sentence. While in prison, the state of Florida paid for a morphine pump that administered painkillers to Paey at rates higher than what the state convicted him of for possessing in the first place. (Emphasis mine)

reason: How were you treated by other inmates?

Paey: Very well, actually. That was one surprise. I’d almost call it a shock. People I would never have associated with—people I’d have been afraid of if I’d seen them in a free-world environment on the street, people with tattoos, crazy hair, and so on—as I got to know them, and was accepted as one of them, they treated me very well. I never had the fear of violence form any of the other inmates. In fact, something else happened. It was the opposite. I found I had more fear of some of the officers who worked in the system and engaged in behaviors that we’d like to think don’t go on in the prison system.

There was an old Cuban man I met when I was transferred to the facility in Lake Butler. When I arrived there, he was the first person I met. He told me the difference between the American prison system and the prison system in Cuba: He said that in Cuba they hit you, but they hit you in front of everybody. He said in America, they beat you behind the building, or in a private room where no one is looking. He’d been in both, and he said that was the difference.

reason: Were you ever beaten?

Paey: I was frequently verbally abused. The older inmates tell me the outright physical abuse has tapered down. As far as physical abuse, there was one time I was hit by an officer. I had been shipped out from Zephyr Hills to Butler after my interview with John Tierney [of the New York Times]. When I got there, they put me in solitary confinement. When I kept collapsing, they had a medical doctor examine me, and he had them move me out of solitary and into a hospital.

So I was sleeping in my bed at around one o’clock in the morning. The lights were on—the lights are always on—and the shift officers were conducting their “shake down”—which means they come in and go through all of your belongings to search for contraband. It seemed to come out of nowhere, he had a radio in his hand, and he swung it down as hard as he could and he hit my legs with it. If I could have gotten out of bed and hit him, I would have. He said to me, “I just wanted to see if you had feeling in your legs.” He saw the wheelchair next to my bed, and that the sheet was covering my legs.

...there are other kinds of abuse that you wouldn’t think about. There were only a handful of officers that were bad, but those few can really do a lot of harm. The kind of thing that goes on today is less noticeable, but it's damaging. Things like leaving the lights on 24 hours a day. I went more than 30 days in solitary where the lights were on the entire time. It was this callous indifference of a particular officer. And other things, like slamming the doors when they do security checks. They come by every hour and give your door a loud kick. When you’re inside a cell and someone comes by and gives that big iron door a kick once an hour, the sound just ricochets between your ears. So systematic sleep deprivation is common. I would see men go into solitary and when they came out weeks later, their hair would be completely gray.

This kind of thing was typical from the officers who weren’t happy with their work, or were looking to inflict additional punishment on inmates. Some of thought prison wasn’t enough for us, that part of their job responsibility was to inflict additional punishment on us.

reason: You mention getting transferred to Butler Lake, the maximum-security prison across the state, several hours further away from your family. That transfer happened shortly after your interview with John Tierney of the New York Times. Do you think the transfer was retaliation—punishment for talking to a journalist?

Paey: That’s what I was told. That’s what a friendly prison nurse told my wife after the interview. And just after the interview, one of the prison officers who was on good terms with me told me that the guard who sat in on my interview with Tierney had gone to his captain about writing me a disciplinary report—which is the first step toward sending someone to solitary. He said I had said thing in the interview that I shouldn’t have said, and that they were going to act on it. There are designated “transfer days” when they move inmates between facilities. About two weeks later, on a day not scheduled to be a transfer day, the sergeant came up to me at around midnight and told me to pack my things. I was being shipped out to Lake Butler. They had no explanation. I couldn’t decline the move. It wasn’t medical in nature.

The move was tough. The sun was up by the time they moved me. It was of those insufferable July days. The van they transfer you in has no air conditioning, and only the driver’s window opens, and only about an inch. So I’m dying in the back of the van, strapped down in my wheelchair in this suffocating heat, where you can’t move, and there’s no air circulating. I ended up falling over, and they had to drive back and do it all over. They ended up taking me an ambulance a few days later.

reason: You say you were put in solitary confinement at Lake Butler. Was that for your health—to keep you from other inmates? Or was that punishment, too?

Paey: Laughs. When I got up to Lake Butler, they didn’t know why I was there. They had no paperwork on my transfer. This is going to sound absurd. Even now I find it difficult to believe. But when my wife Linda began calling the Department of Corrections about my transfer, they told her that a particular doctor had ordered my transfer. Linda called this doctor, got her on the phone. The doctor looked at my transfer order and said, “I didn’t sign that. I don’t know who signed that. Somebody used my signature stamp to sign that. I had no part in this transfer.”

Now, what’s going on, here? I’m being moved out of my permanent camp, which is close to my home and family, I’m being moved to the Siberia of the Florida corrections system, and they put me in solitary confinement once I got there. And nobody knows who authorized it? And the doctor the paperwork says ordered it says she never ordered it? So where do you go from there? What do you do?

reason: And to be clear, this was punitive solitary confinement. You weren’t isolated in a medical ward.

Paey: This place looked like a bomb shelter. Solid cement walls, no windows. You get in through a small hatch. I was pushed inside, and that became my home until Linda’s calls persuaded the doctor to come and see me in August. One of the doctors told me the heat index in there was 105. There’s no air conditioning. I’m in a cell where there’s no air movement. To survive, you strip down to your boxers. You use sink water to soak rags and put them on the back of your neck. They feed you through a slot in the door. There are no bars, like in the movies. It’s all solid, cement walls and doors. That’s where I stayed for two weeks until I started passing out. After that, they moved me to the hospital.

Most people simply don't wish to deal with this, and it does seem that the juggernaut moves on even if citizens try to get in the way. As I noted in yesterday's post, there really is a "ruling class" mentality out there, made even stronger by the fact that government employees -- such as Chris Arnt, Len Gregor, and "judge" Brian Outhouse -- have "captured" the apparatus of the system. They don't "represent" the state; they ARE the state, and the people who supposedly oversee them will bend over backwards to ensure that they can do what they want without any interference from the mundanes who are not part of "Official Georgia."

What is the perspective? Look at the figures below, and you will get a sense of what I mean. This country incarcerates more people than any other and it also incarcerates the highest percentage of its population.

To be honest, I believe we should be ashamed of what we are seeing. It is one thing to lock up violent offenders who actually committed the crimes for which they were convicted. However, it is quite another to throw more than a million non-violent offenders plus the outright innocent into prison, but that is what we are doing, and the powers that be have no intention of stopping -- or being stopped by citizens who might protest this barbarism.

Given the mentality that exists in U.S. government today (at all levels), I am not surprised at the official brutality, a brutality that exists no matter who occupies the White House or Congress or even the U.S. Supreme Court. No, this is what happens when men like Gregor, Arnt, and Outhouse are given power and no accountability. They are part of a larger disease, and it is one for which there seems to be no cure.