The U.S. is a world leader in the jailing and imprisoning of its own citizens. The FBI estimates that local, state, and federal authorities have carried out more than a quarter-billion arrests in the past 20 years. As a result, the American criminal justice system is a robust behemoth that, across the country, costs taxpayers billions of dollars each year.
The American criminal justice system and the criminal law have their roots in English common law. Developed over hundreds of years, the criminal law reflected what conduct English society and government would not tolerate. Crimes developed either as malum in se—criminal because of the innate wrongfulness of the act—or malum prohibitum—criminal because the government decreed it. Mala in se crimes include murder and rape. Mala prohibita crimes include everything from traffic tickets to drug and gambling offenses.
Modern American criminal law has seen an exponential increase in mala prohibita crimes created by various legislatures. The natural result of creating more and more crimes has been the filling of more and more jail cells with newly-minted criminals. Some of these crimes are absurd, and some are outrageous. Many are subject to shocking abuse in the hands of police officers and prosecutors.
The explosive increase in what types of behavior have been criminalized is not the only reason America arrests and imprisons individuals in such large numbers. By design or not, the criminal justice system in the U.S. has evolved into a relentless machine that is largely controlled by law enforcement authorities and prosecutors.
The authority to arrest people and enforce the criminal law at the initial stage is vested almost exclusively within the broad discretion of the police. Police exercise their authority to arrest liberally; statistics show that police arrest more than 11.5 million people each year.
While the initial arrest decision is important, the charging decisions made by prosecutors are, arguably, much more consequential. The power of the prosecutor in the modern American criminal justice system can hardly be overstated, given the inordinately high percentage of criminal cases that are disposed of through plea agreements. The prosecutorial discretion to charge the crimes and enhancements deemed appropriate drives plea negotiations and ultimately convictions.
Legislators, police, and prosecutors are powerful agents of crime creation, enforcement, and control. As the criminal justice system has grown at the hands of this influential triad, it has crept even further into the lives of everyday Americans. They include children who are being pulled into the criminal justice system at an alarming rate. They also include the poor and homeless, for whom policies are specifically designed and implemented to suck them into the system and ultimately to jail. Policies that mandate the jailing of the poor simply for being unable to pay fines are alive and well in America.
As the American public comes to grips with the out-of-control, all-consuming monster that the criminal justice system has become, efforts to address the situation have begun. Unfortunately, these efforts rely on data and crime rate trends that do not tell the whole story. Current legislative and executive solutions address symptoms of the illness, but not the illness itself. An examination of some of the various outrageous and absurd practices in the modern criminal justice system illustrates just how far we have to go.
Crime Creation: Legislatures at Work
The creation of law is the work of federal and state legislatures. A significant change to the criminal law in almost every American jurisdiction in the last quarter century is the legislative manufacturing of habitual offender charges and sentencing enhancements. These laws allow for significantly longer sentences when an individual charged with a crime has a criminal history.
The enactments of these laws were largely driven by public perception of skyrocketing incidences of violent crime and by legislative embrace of the theory of incapacitation as the solution to the increasing crime rates. Because these laws remove the discretion of the judge in sentencing decisions, they have led to lengthy and, in some cases, absurd sentences.
Take the case of Lee Carroll Brooker, for instance. Brooker, a 75-year-old disabled veteran, was arrested in Dothan, Ala. in July 2011 for growing three dozen marijuana plants that he intended for his own medicinal use. Because of the weight of the marijuana and the fact he had been convicted of armed robberies in another state over two decades earlier, Brooker was sentenced to life in prison without the possibility of parole. To put that into perspective, Brooker served 10 years for his previous armed robberies, but he was sentenced to life in prison for growing medicinal marijuana due to his record.
Brooker’s trial judge lamented the sentence that he was required by law to hand down, telling him that if “[I] could sentence you to a term that is less than life without parole, I would.”
Similarly, in May 2015, The Baltimore Sun reported that Ronald Hammond appeared in court for possessing 5.9 grams of marijuana. Because he had been on probation at the time for selling $40 worth of crack cocaine to an undercover officer, he received a 20-year prison sentence.
Habitual offender laws are not limited to drug crimes. In Mississippi, Winfred Forkner, 51, was sentenced to life without the possibility of parole for stealing an air conditioner. Forkner was sentenced in 1999 under Mississippi’s “three strikes and you’re out” law because of two prior convictions in the 1970s—one for armed robbery and one for escape.
In September 2009, Mark Anthony Griffin, a homeless Floridian, was sentenced to 15 years in prison for stealing a box of cereal and a can of evaporated milk. In December of 2013, Dana Brock, a 43-year-old Texas woman, was sentenced to 70 years in prison for stealing her neighbor’s Christmas lights. Both of these cases involved habitual offender enhancements.
There are countless more examples of shocking sentences imposed for relatively minor offenses as a result of habitual offender laws. It strains credulity to think that legislators could possibly have intended some of the more dramatic results.
Judges have long decried the inflexible and sometimes draconian results of sentencing schemes that require such lengthy sentences. Judge Raymond J. Dearie of the Federal District Court in Brooklyn, N.Y. recently said that the country must “jettison the madness of mass incarceration” and find alternatives to overly punitive sentencing in order to address the problem of crime.
Real change requires legislative action, and that has been in short supply for some time. Habitual offender laws are, of course, not the only questionable changes legislatures have made to the criminal law. Most jurisdictions in the U.S., for example, have enacted laws criminalizing the possession or sale of “counterfeit” controlled substances. These laws make it a crime to possess an otherwise legal item if that item is an imitation of a controlled substance.
For instance, in September 2014, Cameron Mitchell, 30, was arrested after he allegedly sold a crushed Pop Tart, which he claimed to be cocaine, to an undercover police officer. He was charged with selling a counterfeit controlled substance and manufacturing a counterfeit controlled substance. A Pop Tart is a completely legal sugary snack, but the moment it was crushed and purported to contain cocaine, it was statutorily transformed into an illegal item to purchase or sell.
Other incidences of absurd offender laws include the criminalization of putting one’s feet up on a subway in New York City. William D. Peppers discovered this when a police officer woke him up on his way home from work and arrested him for having his feet up. He spent 12 hours in jail, and he is not alone. He is one of 1,600 people arrested in 2011 for the heinous crime of resting their legs on a New York City subway.
Putting your feet up on the subway in New York City is not the only non-threatening, everyday behavior that might attract unwanted and unwarranted police attention. In July 2012, fresh from an evening of jazz at Lincoln Center, Caroline Stern, 55, and George Hess, 54, were arrested for dancing on the subway platform while waiting for their train.
When police approached and asked the couple what they were doing, Stern answered, “We’re dancing.” The officers responded, “You can’t do that on the platform,” recalled Stern. When Hess began recording the incident with a camera, he claimed that the officers called for backup, tackled him to the ground, and cuffed him. The pair was then charged with resisting arrest and disorderly conduct for impeding the flow of traffic.
In Kalamazoo, Michigan, failure to license your dog is illegal and punishable by up to 90 days in jail. Becky Rehr, a 47-year-old mother, was arrested and jailed when she went to the local sheriff’s office to prove that she had renewed her 11-year-old dog’s license. She had been late renewing the license.
As state and federal authorities attempt to get a handle on America’s problem of mass criminalization, legislatures should pay careful attention to the overzealous creation of crime. Given the terrible and often life-long consequences of involvement with the criminal justice system, we must ask ourselves whether criminalizing the way an otherwise law-abiding citizen sits, waits for a subway, or speaks makes sense.
Police: Service and Protection or Relentless Incarceration?
Legislatures enact criminal laws, but law enforcement bodies investigate possible crimes, make arrests, and participate in the prosecution of arrestees. In both policy and practice, law enforcement personnel have wide authority to interpret criminal law and make arrests. Given the broad discretion law enforcement officials are granted, they wield enormous power over the lives of every person in America.
Consider the following examples of law enforcement gone awry. Christopher Lewis, a South Carolina man working in construction at the Veterans Administration Medical Center in downtown Charleston in April 2014, was detained in the hospital cafeteria for failure to pay $0.89 for a refill of his drink. He was collared by no less than the chief of the federal police force at the hospital and issued a citation for shoplifting that carried a $525 fine. He was also fired from his job.
“Every time I look at the ticket, it’s unbelievable to me,” said Lewis, who admitted to refilling his drink without paying, unaware that he was committing a federal crime by doing so. “I can’t fathom the fact that I made a $0.89 mistake that cost me $525.”
In response to news coverage of the incident, the VA Medical Center released the following statement, quoted in pertinent part:
“The Ralph H. Johnson VA Medical Center is fortunate to have a highly trained federal police force to ensure the safety of our patients, visitors and employees. As federal police, they are responsible for enforcing the law. Today a federal citation was issued for shoplifting in the VA cafeteria to an individual who stated to VA police he had not paid for refills of beverages on multiple occasions, even though signs are posted in the cafeteria informing patrons refills are not free. Shoplifting is a crime.”
Also, in Midway, Ga., police officers were keeping a careful eye on local neighborhoods in an effort to fight crime. In 2011, officers came upon an illegally operating business; the operators of the stand had failed to secure the $230 peddler’s permit and food permit prior to opening for business. This resulted in officers shutting down the business. So just what was this illicit enterprise? The criminal masterminds were two kids who opened a lemonade stand to raise money for a trip to a water park.
Midway Police Chief Kelly Morningstar defended the officers’ actions, saying that the “police didn’t know how the lemonade was made, who made it, or what was in it,” said Morningstar.
Battery on law enforcement is a serious crime and punishable by a lengthy prison sentence. So 34-year-old Jose Cruz, of Clarksburg, W.V., was undoubtedly concerned when he was charged with battery in September 2008. The criminal complaint alleged that after being pulled over and arrested for DUI, Cruz passed gas and made a fanning motion toward Patrolman T.E. Parsons.
“The gas was very odorous and created contact of an insulting or provoking nature with Patrolman Parsons,” the complaint charged. But in a minor victory for sanity and commonsense, the Kanawha County Prosecutor’s Office refused to prosecute the battery charge.
Feeding the homeless can also lead to police intervention. In April 2015, Chef Joan Cheever was cited for feeding the homeless in Maverick Park, which is located right outside downtown San Antonio, Tex. Chef Cheever, who founded the nonprofit food truck, The Chow Train, had been feeding the homeless in Maverick Park for about a year when she was cited.
The citation was for failing to obtain a permit to deliver the meals in the back of a pick-up truck, instead of the food truck. Failure to do so violated the city ordinance, and the citation carried a fine of up to $2,000.
In Florida, romantic gestures can trigger police intervention. Anthony Brasfield, 40, thought it would be romantic to release a dozen heart-shaped balloons while on the beach in Dania Beach, Fla. with his girlfriend in 2013. But a Florida highway patrol trooper did not see romance in the air; instead, he saw a crime.
Brasfield was charged with a third-degree felony for violating Florida’s Air and Water Pollution Control Act. The crime is punishable by up to five years in prison. According to the Florida Department of Law Enforcement, 21 arrests were made under the statute between 2008 and 2012.
Law enforcement authorities have almost unlimited ability to interfere in the life of American citizens. Post 9/11, attitudes and policies have permitted local, state, and federal authorities to advance a rigid, militarized approach to law enforcement.
The Problem with Prosecutors
Despite the great power of lawmakers and the wide discretion of law enforcement authorities, no player in the criminal justice system has a greater ability to influence a person’s experience and fortunes than the prosecutor. Virtually every aspect of the criminal process, from bail and charging decisions to plea bargaining, is controlled or influenced by the prosecutor.
To make matters worse, there is a decided and undeniable tendency by some of today’s prosecutors to do everything in their power to obtain as many convictions for as many years as possible, regardless of the actual guilt or innocence of the defendants.
Judge Dearie has questioned the widespread practice of prosecutors gauging their success by the number of years a given defendant spends in prison.
“Why this love affair in this country with lengthy incarceration, to our great embarrassment as a civilized nation,” asked Judge Dearie rhetorically in a 2016 speech to a group of New York lawyers.
Most members of the general public likely have no idea how much power a prosecutor has and how brutally it can be wielded.
For instance, data consistently show that well over 90% of state and federal criminal cases end in plea bargains. But as The Atlantic observed in its September 2017 issue, “plea bargains make it easy for prosecutors to convict defendants who may not be guilty, who don’t present a danger to society, or whose ‘crime’ may primarily be a matter of suffering from poverty, mental illness, or addition.”
Stephanos Bibas, a professor of law and criminology at the University of Pennsylvania Law School, described today’s criminal justice system as a “capacious onerous machinery that sweeps everyone in.” Plea bargains “are what keep that machinery running smoothly.”
Prosecutors often wield their discretionary power with devastating consequences for those who get sucked into the criminal justice apparatus.
Consider the case of Tanya McDowell. She used a false address to enroll her kindergartener son into Brookside Elementary School in Norwalk, Conn. Tanya, a homeless single mom from the economically depressed city of Bridgeport, simply wanted to improve her child’s educational opportunities by enrolling him into a better school. This resulted in a first degree larceny charge for enrolling a child under a false address, which is a crime punishable by up to 20 years in prison and $15,686 in restitution.
Given the enormous power prosecutors have, unscrupulous ones have the ability to completely undermine the integrity of the criminal justice system with catastrophic consequences for defendants. In 2010, Edward McGregor was convicted in a capital case and sentenced to life in prison. His conviction was based largely on the prosecutor knowingly and intentionally using perjured testimony. Her misconduct eventually came to light, and McGregor was granted a new trial. The truly alarming aspect of McGregor’s case is not the prosecutor’s misconduct; rather, it is the fact that his experience is not at all unique or uncommon. What is rare about his case is that there is actually an effort to hold the prosecutor (somewhat) accountable for her actions. Although she is not facing any criminal charges, the State Bar of Texas filed an action against her in September 2017, seeking reprimand, suspension, or disbarment.
McGregor’s case is covered in greater detail in another article in this issue of Criminal Legal News titled “State Bar of Texas Pursuing Disciplinary Action against Prosecutor Who Lied about Deals with Jailhouse Informants in Capital Case.”
Debtors’ Prison and the War on the Poor
Debtors’ prisons have been statutorily eliminated from the criminal law for many years. In America, we pride ourselves on not imprisoning those who are in debt and unable to pay.
But is that true? The fact is countless Americans are arrested and jailed each year for nothing more than owing money to the government. This remains legal in a particularly insidious way: When a person is fined by the government and does not pay, he or she can be jailed and often is.
The fines that typically go unpaid, and result in imprisonment of the debtor, stem from what are referred to as nuisance crimes. These include low-level offenses such as jaywalking, littering, parking infractions, moving violations, and similar types of very minor mala prohibita offenses.
A study by UCLA law professor emeritus Gary Blasi titled, “Policing Our Way out of Homelessness? The First Year of the Safer Cities Initiative on Skid Row,” looked at petty citations in Los Angeles in 2007. Skid Row is, of course, home to a large homeless population in L.A. The study found that in Skid Row jaywalking or other petty citations were issued at rates 48 to 69 times higher than those in the rest of the city.
The study further noted that “of the 1,000 people per month who receive citations and are unable to pay the fines, most will face subsequent arrest and jail, even though the original offense may have been littering or a pedestrian signal.”
It was no secret to the L.A. police that the overwhelming amounts of citations given to the homeless resulted in jail time at a disproportionate rate for so many poor and homeless citizens. In fact, some activists believe that L.A.’s Safer Cities Initiative was part of an overall plan to drive the homeless out of downtown L.A. and into county jails.
“The goal of the Safer Cities Initiative is to force poor people of color to move,” said Blasi. “When they don’t move, they go into the criminal justice system.”
Pete White of the Los Angeles Community Action Network, a poverty activist group, made it clear that law enforcement’s pursuit of petty citations such as those detained by Blasi are nothing more than “an excuse for search, harassment, and intimidation of the poor.”
Also, jailing debtors for unpaid fines is economically absurd because the cost of jailing someone for unpaid fines generally amounts to significantly more than the value of the fines themselves.
To illustrate the point, the City of Los Angeles has spent over $250,000 arresting, prosecuting, and incarcerating a single homeless person—59-year-old Ann Moody.
Moody has been arrested 59 times in six years, according to the Los Angeles Times. Indeed, it turns out that Moody has been arrested more than any other person in Los Angeles, mostly due to her sitting on a public sidewalk. She has spent 15 months in jail since 2002. Moody remains unrepentant and notes that “we’re human beings, not to be pushed around like cattle. We have a right to be stationary.”
Professor Blasi may not be able to explain the warped economics of the LAPD’s “operation bad Moody,” but he does have an opinion on why Moody aggravates police officials to the point of spending a quarter-million dollars to continually arrest and jail her: her persistent opposition to the police on remaining on the sidewalk. “Unlike other targets, she just doesn’t go away,” observed Blasi. “That corner is where she thinks she should be.”
Activists have been fighting the scourge of modern debtors’ prisons for years. In April 2016, the Texas Civil Rights Project sued the City of El Paso, Tex. in federal court for constitutional violations related to the city’s policy of jailing those who cannot pay their fines.
Carina Canaan is one of the two plaintiffs in the suit. She racked up over $3,000 in tickets for driving without a license while she was attending school and working for $8 an hour. She spent 10 days in jail for failure to pay the fines while pregnant with her first child, and she still cannot get a license because she owes additional fees.
Levi Lane is the other plaintiff in the suit. Earning $8 an hour at a pet food factory, he did not have enough money to pay for his registration and insurance. With no public transportation available, Lane continued driving to work, but he was uninsured and unregistered, which resulted in $3,400 in citations before he was arrested. Unable to pay the fines, Lane spent three weeks in jail and lost his job.
In 2006, the El Paso implemented a program whereby people with tickets could satisfy their fines through a payment plan, but the plan required a down payment of 25% of each ticket’s total amount in order to utilize the payment plan option. Of course, many potential participants could not afford even the down payment.
Brian Jacobi, an attorney for the Texas Civil Rights Project, said that reforms proposed by El Paso were not enough to cover for those who simply could not pay out of their pocket.
“The city has not gone near far enough to address the problems,” charged Jacobi. “This is an issue of fundamental fairness for poor Texans.”
More recently, the U.S. Department of Justice (DOJ) has begun investigating and suing officials at the city, county, and state levels who promulgate policies that result in the jailing of individuals simply for failing to pay fines. In June 2016, the DOJ reached a settlement agreement with Hinds County, Miss. prohibiting some jail sentences for failure to pay court-ordered fines and fees.
According to The New York Times, the fees in question could include everything from traffic citations to the cost of a prisoner’s incarceration, which have been found to fall disproportionately on minorities and have long been a source of frustration among the unemployed and the working poor.
But the most forward-looking aspect of the DOJ settlement agreement is a mandate for the county to form and staff a criminal justice committee. According to the DOJ, the committee will be composed of judges, the county sheriff, members of the board of supervisors, mental health professionals, and local residents. The committee will work to find alternatives to incarceration.
Where Do We Go From Here?
The epidemic of mass criminalization and incarceration in America is not a new development. Nor are proposed solutions to the problems of the modern criminal justice system. Unfortunately, most of the current reform-based practices and policies address the bleeding, not the wound. Easing prison overcrowding and decriminalizing some drugs, such as marijuana, is a start. But similar to the meatball surgery done on wounded soldiers by combat surgeons, it is a patch job that fails to tackle the source of the problem.
Recognition of the criminal justice system’s problems as systemic in nature is the first step to moving forward with change. We must recognize that schoolchildren are being handcuffed and arrested by unnecessarily aggressive police; that human lives are being flushed down the toilet by overly ambitious prosecutors; that legislatures are criminalizing more and more commonplace behavior; and that this system is unfitting for an America that prides itself on civil liberties.
We could also adopt alternative policies like those in Portugal. The Washington Post reported that Portugal decriminalized the use of drugs in 2001 and reshaped the portrayal of drug addiction as a public health issue. This resulted in the lowest rate of drug-induced deaths in Europe and also lowered the HIV infection rate. Similarly, we can seek guidance from the approach adopted by Nelson Mandela and the Truth and Reconciliation Commission, which was created in the 1990s to confront South Africa’s apartheid atrocities. The consensus among members of the commission was that “it was not punishment but the acknowledgment of wrongdoing” that would bring a peaceable future, reported Truthout in September 2016. Thus, in South Africa, if torturers and murders involved in the apartheid publicly denounced their atrocities and asked for forgiveness, they were granted amnesty for their crimes. Perhaps this is the approach that the U.S. should adopt as a part of a nationwide social healing process.
Understanding just how unrecognizable the criminal justice system has become leads to an obvious question: Why? This is where real solutions to the problem of an out-of-control system begin to surface. And this is the question that every American must answer.
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Originally published in Criminal Legal News on November 16, 2017.