Monday, 19 January 2015

Monarchical Tyranny Redivivus

Rotting Sores

George Will is a seasoned, right-of-centre columnist in the United States.  He penned an open letter to Loretta Lynch, who is the nominee for US Attorney General.  She is soon to be examined by the Senate.

In Will's letter, he raises a number of disturbing features of the US judicial system--features which appal advocates and commentators on both left and right. 
Senate confirmation hearings put nominees on notice that, as a Michigan state legislator reportedly once said, “I’m watching everything you do with a fine-toothed comb.” Loretta Lynch, a talented lawyer and seasoned U.S. attorney, should be confirmed as attorney general. Her hearing, however, should not be perfunctory.

Questions like the following would highlight some festering problems:

Next year is the 800th anniversary of Magna Carta, which began the slow, serpentine progress to our modern panoply of rights, including those of persons accused of serious crimes. Today, however, regarding sexual misconduct on campuses, the Department of Education’s Office for Civil Rights uses the threat of withdrawing federal funding to coerce colleges and universities into jettisoning crucial defendants’ protections when adjudicating, in improvised tribunals, accusations of sexual assault. Presumption of innocence? The new presumption is that accusations are valid until disproved. The right to confront one’s accuser? No, it would be traumatizing to the “survivor” (note the prejudgment). Proof beyond a reasonable doubt? Now a mere “preponderance of the evidence” will suffice. Are you comfortable with this traducing of due process?
The presumption of innocence and the need to prove guilt beyond reasonable doubt are fundamental to our Anglo-Saxon systems of justice.
  A society departs from them at its peril.  Vigilance is ever required to watch for those threats which would undermine these bulwarks against state tyranny.  The United State's perpetual incarceration of prisoners without trial--in places such as Guantánamo Bay--because of a declared War Against Terror--is just such a threat.  But another, more subtle threat comes from "fashionable" crimes which offend the cultural sensitivities of certain popular, yet peculiar ideologies.  Sexual stereotyping by militant feminism-cum-marxism has become such a bête noire such that the "crime" must be punished, even if it means judicially "fitting" someone up for it.  It is the attendant propaganda which matters, not justice--or so the militant feminists believe.

Much ink and indignation have been properly expended concerning the torture of some detainees by counterterrorism personnel. But what about the promiscuous use — currently impacting thousands of prisoners — of long-term solitary confinement in prisons? In 1890, the Supreme Court said of such punishment: “A considerable number of the prisoners fell, after even a short confinement, into a semi-fatuous condition, from which it was next to impossible to arouse them, and others became violently insane; others still committed suicide.” Given its deranging effects, does this practice constitute torture as defined by federal law — conduct “specifically intended to inflict severe physical or mental pain or suffering”?
Prolonged solitary confinement represents cruel and unusual punishment.
Years pass, studies are written and vows are made, yet the scandal of prison rape persists. When will the government stop this crime against inmates in its custody?
This is a terrible blight upon any prison system.  Christian ethics proclaim that two wrongs do not a right make.  The only alternative is barbarous and represents great evil.
The U.S. incarceration rate is five times Wales and England’s, nine times Germany’s, 14 times Japan’s. In 2010, more than 200,000 inmates — approximately the nation’s total number of prisoners in 1970 — were over the age of 50. How can this be necessary?

When choosing between two evils, Mae West said, “I always pick the one I never tried before.” The number of drug offenders in federal prisons is 20 times the number in 1980, and accounts for more than half of our federal mass incarceration. The “war on drugs” is horrendously expensive (in money and shattered lives) and hardly effective (drug prices fall as quality rises). Is it time to consider decriminalizing some controlled substances?

In California, which spends almost as much on corrections and rehabilitation as on universities, approximately 2,000 persons who have committed no violent or otherwise serious crime are serving 25 years to life under the state’s “three strikes and you’re out” law. It mandates such sentences for any third felony. Do you think that mandatory — and often draconian — minimum sentences prevent judges from judging? And that the threat of such sentences, by extorting guilty pleas, can vitiate the right to a trial?
The California "three-strikes" law is a classic example of why plebiscites should not be allowed over the text or terms of specific legislation.  "Three strikes and you're out" represents a wonderful, compelling campaign slogan.  But it has produced horrible, inequitable, iniquitous outcomes in law, and in penology.  As George Will argues, it has undermined the judiciary in California as well as the judicial system itself. Inmates in California have received life-long sentences without parole for repeated minor misdemeanours. 

New Zealand's "three strikes" law is much, much better.  It is limited to a list of crimes of a serious, violent and criminal nature.  It retains some judicial discretion.  It puts offenders on clear warning well in advance.  The incarceration is not permanent, but to the maximum penalty prescribed by law for the third conviction, with no parole.  Whilst no-one has yet received a "third strike" sentence, and it has yet to be tested over time, we are confident that the inequities and iniquities of the Californian disaster will not be repeated here.
The Justice Department has been, to say no more, unhelpful regarding attempts to fully investigate and properly punish the politicization and corruption of the IRS. Given the department’s seeming complicity in the cover-up, would it not be appropriate to appoint a special prosecutor to investigate the IRS practice of suppressing the political activity of conservative groups?
This is currently a hot political issue in the United States.  However, any citizen would rightly pale at the prospect of the Federal government, or any government, for that matter, being able to access the tax records of free citizens and use them to punish or threaten or intimidate political opponents--by leaking them to the press, for example.  Or to favour some taxpayers and disadvantage others on the grounds of their political views or religion or lawful activity in the public square.

Civil forfeiture — the seizure of property suspected of being produced by, or involved with, crime — has become a lucrative business for lawless law enforcement. Civil forfeiture treats citizens worse than criminals, seizing the property of persons neither convicted of nor even indicted for a crime. All or a portion of the proceeds from the sale of such property goes to those who seized it. You are familiar with this form of moral hazard: Between 2011 and 2013, your U.S. Attorney’s office reaped more than $113 million from such forfeitures. Do you agree that this practice often is indistinguishable from robbery?
Civil forfeiture has become a moral and legal monstrosity, where citizens are punished as if they were guilty and assets confiscated, without ever having been tried, let alone convicted.  By this measure, the US has returned to a kind of arbitrary, monarchical tyranny, against which its earliest citizens rebelled in the first place. 
Many progressives say that the 34 states that have passed laws requiring voters to have a government-issued photo ID are practicing “vote suppression.” Does requiring a photo ID at airports constitute “travel suppression”? Visitors to the Justice Department are required to present photo IDs. Will you — we will be watching with a fine-toothed comb — plan to end this “visit suppression”?

George Will is a Pulitzer Prize–winning syndicated columnist. © 2015 The Washington Post

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