THE ELEPHANT IN THE ROOM: PRE-TRIAL, PRE-CONVICTION AND PRE-SENTENCING PRISON
*This could be one of the most important essays you will ever read,
because it directly impacts you and people you care about!
Most of the chatter and discussion related to Bundy et al, on social media, in front of the Las Vegas courthouse, in homes and restaurants, revolves around such issues as the behavior of Judge Navarro, the prosecutors, the prison staff and the jury’s verdict. We dissect and analyze all the proceedings of the court, the Allen charges and many other finer technicalities of the law, as we rightfully should.
Meanwhile, a large 8-ton elephant stands there in our living room, ignored. We bump into the elephant all the time, but instead of acknowledging him, we walk around him. The elephant produces a lot of excrement. We complain about the excrement but instead of challenging the presence of the elephant or removing him, we simply deal with it, we throw money at it or we let the excrement continue to accumulate. The elephant is taken for granted, it is there and must be there for a reason, but we don’t know exactly why.
What is the elephant in the room? The elephant is the monstrous injustice of pre-trial, pre-conviction and pre-sentencing prison. The excrement are all the effects of having the elephant in our living room, including:
- strip/cavity searches,
- fatherless children, husband-less wives,
- ruined employment and ruined businesses,
- ineffective defense, confiscation of legal notes
- Psychological effect on the jury “they are prisoners, they must be guilty”
- solitary confinement
- lack of showers, toilets and hygiene
- cruel prison staff
- plea deals
- general pain and suffering
Instead of focusing on the elephant, we focus on what the elephant makes possible:
- The federal team (judge, prosecutors, marshals) being in total control up to conviction and sentencing.
- Constant need to raise funds for commissaries, legal expenses, family needs. While money would still be a need without the elephant, the elephant makes it much worse.
- Hampered, obstructed, hindered, disadvantaged defense. Bad communications from prison and inconvenient visits by defense team.
The defense attorneys will argue that we have to choose our battles. The 8-ton elephant is so settled and established, that we dare not try to make it leave. It is better to ignore it and work around it.
THE ELEPHANT REPELLENT: BAIL AND THE PRESUMPTION OF INNOCENCE UNTIL PROVEN GUILTY
Without going into a lot of detail, suffice it to say that the right to bail goes back to the Magna Carta and was in response to the abuse by government to imprison political enemies prior to trial, to make them weaker, soften them up for negotiation or to make them look less credible at trial. Without the right to pretrial liberty, it was an extremely uneven playing field and the defendant had an uphill battle.
Of course, there are many really bad criminals who would not show up to trial if they could escape or, they may even continue to commit crimes while they awaited trial. To help offset that, the concept of bail was instituted, where money was used as leverage to get the accused to show up to trial and even prevent some further crime rather than lose the bail money.
THE BLACKSTONE RATIO
The tension between the abuse of political enemies by powerful leaders and the reality of dangerous and manipulative criminals, has always been a challenge. However, due to the overwhelming abuse by people in power, the risk of pretrial prison abuse was far greater than the risk of flight of the accused or the accused committing a dangerous act…10 times worse, according to William Blackstone.
Blackstone said, “It is better that 10 persons escape than one innocent suffer”. Later, Benjamin Franklin increased the ratio when he said, “That it is better that one hundred guilty persons escape than that one innocent person suffer.”
For Blackstone and Franklin, it was clear to them that the risk to society by having a possible criminal on the loose while awaiting trial, was far better than the risk of abuse of an innocent person by a corrupt government.
Why was the ratio so extreme? Because, based on experience, Blackstone and Franklin knew that government ALWAYS abuses its power, always. To make the playing field level, government against individual, there needed to be extreme advantage given to the individual, now known in law school as the Blackstone Ratio.
THE RISE AND THE FALL OF THE PRESUMPTION OF INNOCENCE UNTIL PROVEN GUILTY
The Blackstone Ratio and Franklin’s increase, gave rise to the doctrine of a presumption of innocence until proven guilty. The right of the individual to be presumed innocent and free prior to trial and conviction, far exceeded the right of society to presume the individual guilty and protected from dangerousness and flight risk.
The courts have affirmed, reaffirmed and confirmed the constitutional right to a presumption of innocence and its attendant right to bail.
ALONG COMES DIRTY HARRY
Clint Eastwood, in the 1970’s and 80’s, made famous “Dirty Harry” (a name that better fit Senator Harry Reid) in a series of films about a cop who was sick of society giving too many rights to dangerous criminals and letting dangerous criminals go free under the presumption of innocence. To correct the imbalance, Dirty Harry took it upon himself to be judge, jury and executioner. Dirty Harry became a hero, as he cleaned the streets of bad guys, making it safe for the good guys.
The Dirty Harry image caught on, politicians became obsessed with law and order and decided that the Blackstone and Franklin ratios no longer applied. Congress decided that in today’s society, we are now free of government tyranny and government abuses. Unlike Blackstone and Franklin’s time, bad government and corrupt officials no longer dominated, therefore, Congress, in the best spirit of Dirty Harry, gave fast track and increased powers to judges to put the bad guys away, essentially reversing a presumption of innocence to a presumption of guilty. If a judge has probable cause to think you are guilty, then you probably are guilty. After all, the judge is a good guy, like Dirty Harry, and the judge knows best.
THE BAIL REFORM ACT
Five hundred years of protection afforded to the individual accused of a crime, shifted and changed dramatically with passage of the 1984 Bail Reform Act (BRA). For the first time, the element of “dangerousness” became a reason to detain a person prior to trial. For the previous 500 years, the only reason to detain prior to trial was flight risk.
There were challenges to the BRA and circuit courts were split as to the constitutionality of the BRA. The Supreme Court settled the question of constitutionality in its Salerno decision. United States v. Salerno, 481 U.S. 739, 748 (1987) (“Even outside the exigencies of war, we have found that sufficiently compelling governmental interests can justify detention of dangerous persons.”).
Blackstone and Franklin must be rolling over in their graves
Salerno determined that pretrial detention, as it relates to the Bail Reform Act, does not constitute punishment and therefore does not violate the Due Process Clause. the Salerno Court held that “preventing danger to the community is a legitimate regulatory goal.” The Court also noted that there are other situations in which it has held that public safety trumps individual liberty interests, thereby, nullifying the Blackstone ratio and Franklin’s 10 fold increase to the Blackstone ratio.
The Salerno decision did not even mention the presumption of innocence. And thus, without much discussion, the Salerno Court neglected the application of pretrial due process and the presumption of innocence, upholding the 1984 Act.
Justice Marshall wrote a scathing dissent, arguing that the Bail Reform Act specifically states that it does not modify or limit the presumption of innocence, citing 18 U.S.C. § 3142(j): “The majority’s untenable conclusion that the present Act is constitutional arises from a specious denial of the role of the . . . Due Process Clause in protecting the invaluable guarantee afforded by the presumption of innocence.” Salerno, 481 U.S. at 762–63
In spite of the dissent by Marshall, the USA has gone down a slippery slope of pretrial detention and which contributes to the dubious distinction of leading the world in total prison population. Source
As intended by the BRA, the number of pretrial detentions skyrocketed. The 1984 Act increased the number of federal prisoners by 32% in 1985. See Howard Kurtz, Detention Law Further Crowds Prisons, WASH. POST, Jan. 9, 1986, at A4 (as of 1986, the federal prison system was 42% overcapacity).
Once the floodgates were open for judges to predict what a defendant would do upon release, bail as a presumption for all accused, became a relic of the past. Most offensive to the principles of due process, was the new license given to judges, for the first time, to weigh evidence against an accused, prior to the due process of trial, to determine if prison is appropriate. One of the most widely cited cases, still followed today, is United States v. Jessup, 757 F.2d 378 (1st Cir. 1985). The First Circuit, as well as other district courts, found that once a presumption of detention is created by a charge against a defendant, the burden of production shifts to the defendant to prove that he can safely be released.
The Salerno decision was the main turning point, setting a course that forever destroyed the presumption of innocence until proven guilty and leading today, to a horrible, awful situation that we find with the Bundy et al defendants.
Like cutting down a giant redwood tree, hundreds of years old
The Bill of Rights deals exclusively with the rights of the accused and the burden of proving their guilt rests 100% on the accuser. Since the accuser, in criminal matters, is the government who has vast resources, it was specifically designed by our founders to be a protection to the accused against abuse of power by the government. With the stroke of a pen, the Executive and Judicial branches, through BRA and supporting court decisions, cut down this protection by shifting the burden to the defendant, like felling a giant redwood tree, hundreds of years old.
In a mockery of justice, and in the best tradition of George Orwell’s doublespeak, Judge Anna Brown declared to the defendants, at their arraignment hearing, that they were entitled to a presumption of innocence until proven guilty. The defendants looked at each other and then at her and said, “But these chains on us don’t make us feel that we have a presumption of innocence.” Then Brown proceeded to condemn these defendants to prison, prior to any trial or conviction. Anna Brown, supported by common law and precedent, was not alone as many judges enjoy the power to imprison defendants prior to any trial with the powers given to them by the Bail Reform Act.
The imprisonment of the Bundy et al defendants, along with thousands of other prisoners who have never been convicted, should send shivers down our spines, that this could happen to any of us for helping our neighbor and for exercising our First Amendment rights to protest and to self defense.
This writer, along with many others, suspects that, if there is any conspiracy, it is not being hatched by the defendants, but by powerful government elitists who seek to overthrow our freedoms and to pillage, raid, and benefit from the riches and natural resources of this country. The erosion of the Due Process clause of the constitution, the plethora of Federal laws against any kind of rebellion or resistance, and the Bail Reform Act all form a coordinated, conspired effort to put down citizen resistance and to favor a few elite at the top of the pyramid of power.
As Ammon Bundy said, in effect, when has government always been right? Does history contain any examples of government always being right and not abusing its power? It follows then, if government is not always right, and if overreach and wrongful use of force by government actors can happen, then what rights do citizens have to resist? The federal team (judge, prosecutors, marshals) made it abundantly clear at trial, that there was NEVER any justification for citizens to impede the duties of federal officials and that even a 2nd amendment tool in the presence of a federal official could lead to many years of prison. If government can hold over citizens’ heads the prospect of pretrial detention, prior to being heard by a jury of peers, then does that effectively put down resistance? Are the Bundys et al. 460 days of pre conviction prison, being used as examples and as a chilling effect against any thoughts of resistance to government overreach and abuse?
The elephant in the room simply cannot be ignored because, even if the Bundy et al, defendants are guilty of criminal actions according to a jury of peers, then the elephant of pre trial, pre conviction and pre sentencing prison should not be allowed to hamper their defense through the physical, emotional and psychological effects of prison. Liberty prior to trial is the default position. We need to return to a presumption of bail.
If defense attorneys and legislators continue to ignore the 8 ton elephant in the room, and not raise new constitutional challenges or write remedial legislation, then we are all in danger of being crushed under its feet.