I started this current series to discuss what is wrong with our country and what we need to do to fix it. While I have discussed some of the topics that I will be including in this series, they have been included in other articles. In this series I will concentrate on a single topic. This will also mean that some of the articles may be slightly shorter than my readers have grown accustomed to, however they will still be written with the same attention to detail. This series will have no set number of articles and will continue to grow as I come across additional subjects.
Our Broken Justice System
Imagine you have omnipotent power over nature but a poor understanding of how it actually works. One day, after being stung during a picnic, you decide to get rid of all honeybees. What would happen? Before long, wide swaths of the terrestrial ecosystem would begin to fall apart. Crops that depend on bees for pollination would fail; various other plants and trees would be unable to reproduce and would start dying off, followed by the countless insects, birds, and mammals that depend on those flora to survive.
This is an apt metaphor for what has happened to America’s criminal justice system over the past century as we have taken the very heart of that system — citizen participation, in the form of jury trials — and ripped it right out. The result has been every bit as disastrous for the criminal justice “ecosystem” as the elimination of bees would be for the natural one. And just as the extinction of bees would produce downstream effects that would be difficult to trace back to their true cause, so too does our criminal justice system feature downstream pathologies not obviously connected to the practical elimination of jury trials. Thus, to achieve fundamental reform of America’s criminal justice system, we must understand how we managed to kill off the criminal jury trial and, even more important, how we can resurrect it.The jury trial is the only right mentioned in both the unamended original Constitution and the Bill of Rights. Indeed, the Constitution devotes more words to the subject of jury trials than to any other right. The Founders’ intent to put citizen participation at the very heart of our criminal justice system is unmistakable. And yet the criminal jury trial is now all but extinct. More than 95 percent of all criminal convictions today are obtained through plea bargains — that is, supposedly voluntary confessions. One of the most important questions in criminal law and criminal justice reform is why so few people are interested in exercising their right to force the government to prove their guilt beyond a reasonable doubt to the satisfaction of a unanimous jury.
There appear to be two main reasons. First, the plea‐bargaining process can be — and often is — extraordinarily coercive. Second, the criminal jury trial itself has been fundamentally transformed over time so that it is much less valuable to criminal defendants now than it was earlier in our nation’s history. I will briefly summarize coercive plea bargaining, which gets significant attention, and then discuss in more detail the radical devaluation of the criminal jury trial, which does not receive nearly the attention it merits.
MORE PROSECUTIONS MEANS MORE PLEA BARGAINING
Unknown at the Founding, plea bargaining arose in response to the need to process a rapidly increasing number of criminal defendants through a system that was consciously designed to promote fairness and transparency rather than mere efficiency. The problem became particularly acute during Prohibition, when the government itself became a generator of crime by enforcing widely ignored laws and prompting the creation of a flourishing — but characteristically violent — black market in the production and distribution of alcohol.
Over time, prosecutors found that with the application of enough pressure, nearly any defendant could be induced to confess and thereby spare the government the inconvenience, expense, and risk of a public jury trial. That pressure can be generated in many ways: for example, detaining defendants before trial in a hell‐scape like Rikers Island, providing systematically underfunded and inadequate defense counsel to indigent defendants, increasing a defendant’s exposure to punishment through creative charge‐stacking, and establishing vastly excessive mandatory minimum sentences to make an example of those who exercise their right to a jury trial and lose. Perhaps not surprisingly, federal prosecutors — who are typically drawn from the most elite law schools and have clerked for top federal judges — have proven particularly adept at applying the levers of coercive plea bargaining. In the federal system, more than 97 percent of all criminal convictions come from plea bargains. Today’s federal prosecutors rarely lose a case because they rarely go to trial.
But coercive plea bargaining is only part of the story behind the demise of the criminal jury trial. An equally important but far less appreciated dynamic has been the radical transformation of the American jury and its role in the adjudication of criminal charges.
WHAT IS THE ROLE OF THE JURY?
There are two competing views regarding the proper function of a criminal jury. The one that holds sway today conceives of the jury as a purely fact‐finding body. Was the light green or red when the defendant entered the intersection? Did the defendant use this knife to kill that person? Were the representations contained in this company’s SEC filings materially misleading, and if so, was the deception intentional? According to the modern understanding, a jury has no other role than to help ensure that the verdict in a criminal case is based upon empirically correct answers to purely factual questions like these.
But the Founding‐era conception of the jury was much different. Consistent with centuries of Anglo‐Saxon custom and practice predating the Magna Carta, criminal juries were understood to play both a fact‐finding role on the one hand and a government‐checking and injustice‐preventing role on the other. Jurors fulfilled the latter role by refusing to convict when they believed, for whatever reason, that it would be unjust to do so. Thus, for example, colonial jurors in New York famously acquitted the publisher John Peter Zenger of seditious libel for his criticisms of royal governor William Cosby, even though Zenger had plainly committed that crime. This concept is commonly referred to as “jury nullification,” but a more precise and less pejorative term is “conscientious acquittal” — the refusal to convict a factually guilty defendant if the jury believes it would be unjust to do so.
Jurors might consider it unjust to convict a factually guilty defendant for many reasons. They might find the prosecution to be politically motivated, as in Zenger’s case. They might consider the prosecution’s tactics, such as the use of paid informants or threats against the defendant’s friends and family, to be unacceptable. Or they might feel that the process had been corrupted by the criminal acts of law enforcement officials, such as the undercover agents who stole hundreds of thousands of dollars’ worth of bitcoin during the Silk Road/Ross Ulbricht investigation. But probably the two most common grounds for conscientious acquittal throughout history are a moral disagreement with the law itself and a belief that the proposed punishment is too harsh for the crime.
Consider the breathtakingly harsh penalties for the cultivation and distribution of marijuana under federal law. A person caught growing 1,000 or more marijuana plants — a modest commercial operation in fully legalized states like Oregon or Colorado — faces a federal mandatory minimum of 10 years in prison. Even worse, if an 18‐year‐old who is engaged in a perfectly legal sexual relationship with a 17‐year‐old takes nude pictures of his or her paramour and stores them in the cloud, that constitutes the production of child pornography under federal law, for which the mandatory minimum sentence is a whopping 15 years.
Prosecutors who bring unduly harsh charges against sympathetic defendants ought to be concerned about how jurors might react, particularly if the government’s hands are less than clean. Consider the case of Charles Lynch, a Californian suffering from debilitating migraines who had such a miraculous experience with medical cannabis that he decided to open a dispensary to provide others with the same opportunity. Unsure about the interplay between state and federal laws, Lynch placed four separate calls to the Drug Enforcement Administration (DEA}, seeking to determine whether it would be permissible for him to operate the proposed marijuana dispensary under federal law. Instead of giving him a flat (and accurate} “no,” DEA personnel shuffled him around from one staffer to another until finally he ended up speaking with a representative of the “Marijuana Task Force,” who falsely advised him that “it was up to the cities and counties to decide how they wanted to handle the matter.” Lynch then opened his dispensary and had been operating it for nearly a year when the DEA raided his home and business, resulting in a multi‐count federal indictment that included a five‐year mandatory minimum prison sentence.
Given that Lynch is being prosecuted for conduct that a clear majority of Americans now think should be legal, should his lawyer be permitted to inform the jury about the five‐year mandatory minimum, and is Lynch entitled to a jury instruction advising jurors that they have no obligation to convict him, even if they believe he is factually guilty? Prosecutors throughout the country are adamant that the answer to both questions is no. And the case law generally supports them. Thus, even though the penalties for many federal crimes are expressly stated in the U.S. Code and are easy to look up, prosecutors will go to extraordinary lengths to ensure that jurors remain ignorant of the punishment the government plans to inflict on the defendant if they convict. And even though the Supreme Court has repeatedly acknowledged that jurors have the unquestioned authority to engage in so‐called nullification, judges and prosecutors work together to ensure that jurors remain ignorant of that power as well. These efforts include screening potential jurors during voir dire (jury selection} and misleading those who are empaneled into believing that they would be violating their oaths if they acquitted a defendant whose factual guilt they believed had been proven beyond a reasonable doubt.
Thus, whereas Founding‐era jurors generally knew what the punishment would be for the defendant upon conviction, modern jurors rarely do. And whereas Founding‐era jurors were likely to be generally familiar with — and supportive of — the historic role of juries in limiting government power and preventing manifest injustices through conscientious acquittal, modern jurors rarely are, both because the practice has fallen into disuse and because the system makes a point of eliminating from the jury pool people who consider conscientious acquittal a legitimate act. As a result, the modern criminal jury is a comparatively toothless institution that plays scant role in constraining the discretion of prosecutors, whose appetite for convictions has helped give America the highest incarceration rate in the world.
WHAT CATO IS DOING
Cato’s Project on Criminal Justice considers the practical elimination of citizen participation in the administration of criminal justice through coercive plea bargaining and the diminished power of the jury to be among the American criminal justice system’s chief pathologies, and we have devised a strategic plan to challenge it. The centerpiece of that plan is an amicus curiae (“friend of the court”) brief campaign designed to challenge the government’s preference for purely fact‐finding juries whose members are neither advised about nor equipped to fulfill the crucial injustice‐preventing role that Founding‐era Americans considered to be the essential political function of criminal juries. The campaign includes not only challenges to judges’ refusal to instruct jurors regarding nullification and sentencing but also First Amendment challenges to the government’s policy of criminalizing third parties’ communication of such information to jurors. In fact, the government has no compelling interest in preventing people from communicating to jurors publicly available information about the government’s own sentencing policies or information designed to challenge the government’s self‐serving and anachronistic conception of the jury as a purely fact‐finding body. Taken together, these steps could help revive the Framers’ understanding that juries have an important, legitimate role in preventing injustices and checking the illegitimate use of government power.
Restoring citizen participation in the administration of criminal justice through what we might call “Founding‐era informed juries” is a powerful antidote to the twin travesties of coercive plea bargaining and mass incarceration. Our work on that project has only just begun, but we will not rest until the goal has been achieved. There is simply too much at stake.
5 Biggest Problems with the Outdated Criminal Justice System
An outdated and unfair criminal justice system continues resulting in devastating consequences for crime prevention, rehabilitation, and fair justice in the U.S.
The United States has almost 7 million people under correctional control, making it the world leader in incarceration. Out of those, about 2.2 million are serving sentences, and the rest are either on probation, parole, or under community surveillance. It is estimated that 100 million have a criminal record.
Criminal justice reform has become a necessity since most incarcerations are not caused by increasing crime rates, but by the persistence of adhering to extremely punitive policies and sentencing laws.
One of the biggest consequences of the current criminal justice system is the impact it has on minority communities – with whole generations condemned to a vicious cycle of incarcerations. It also aggravates social economic and racial inequalities. These lead to relapses, unemployment, and other social handicaps – with no real evidence that it prevents crime.
COVID-19 has also highlighted the inefficiencies of a system that relies on incarcerations. In a study conducted by Time magazine, it was found that 39% of people in prison did not pose a threat to public safety, and their release could save the country $20 billion annually. Of these, 25% are lower-level, non-violent offenders who could benefit from alternative types of reforms, and 14% have already served long sentences for serious crimes and could safely be released.
These are the 5 biggest problems the outdated U.S. criminal system faces today:
1. Law enforcement and policing
Sending armed officers in uniforms to respond to 911 calls often leads to situations like the one that led to the death of Rayshard Brooks in Atlanta in mid-2020. It is estimated that 80% of nationwide calls to 911 are not made because of violent or property-related offenses. That indicated it should not be the police responding to them. Additionally, many people, particularly from minority groups, do not make calls to emergency services because they are scared that the responders will be police officers. The system needs reforming to ensure the right responders are sent out to deal with each specific situation, especially with drug-related and psychological distress situations.
2. The 1994 Crime Bill
The 1994 Crime Bill not only increased the number and length of incarcerations, but more funding went into building jails and prisons. Also, the possibility of early release was reduced. These measures increased the amount of taxpayers’ money invested in enforcement and led to a disproportionate number of incarcerations among African-American men. Its effect on public safety was minimal.
3. Mandatory minimum sentencing
Mandatory minimum sentencing is the minimum sentence a court can give for a specific crime, even if there are unique circumstances. Unfortunately, even though more than half of federal inmates are incarcerated under these mandatory provisions, there is no correlated increase in public safety.
Prosecutors often have incentives to send people to prison, and they can pick the charges they want to send someone to prison for. Rachel Barkow, author of “Prisoners of Politics: Breaking the Cycle of Mass Incarceration”, is quoted from an interview to CBS News: “Instead of having a judge decide what the sentence should be, prosecutors can make that decision. That is really problematic because the judge is at least an objective third party with no stake in the outcome. The prosecutor, however, can threaten people with mandatory minimums to get them to plead guilty.”
4. Poverty continues inhibiting prevention and recidivism
Some of the issues contributing to the high number of incarcerations include drug use and mental health. The money set aside for policing and detentions could be better spent on community prevention and treatment programs.
Recidivism can also be reduced if the federal Pell Grants were restored to inmates. These grants allowed federal education support and financial aid to help rehabilitate those incarcerated and giving them a second chance.
Additionally, the system requiring people to pay cash bail adds to the problem. It is estimated that 3 out of 5 people in jail have not been convicted for a crime, but are too poor to meet the bail set by the court.
5. Handling of juveniles
Juveniles are often tried as adults in the criminal justice system, and they are not given parole eligibility. Also, policing of neighborhoods and schools often criminalizes minor offenses and contributes to unnecessary violence. This leads to a stigma or psychological trauma that can lead to increased criminal activities.
Addressing these challenges needs concerted efforts across the whole criminal justice system if the number of incarcerations is to be reduced and crime numbers kept low.
How should the criminal justice system respond to the problems with forensic evidence?
According to the Innocence Project, faulty forensics contributes to nearly half of DNA exonerations and almost 1/4 of all exonerations.
What are some problems with the criminal justice system?
An outdated and unfair criminal justice system is having devastating consequences for crime prevention, rehabilitation, and fair justice in the U.S.
How can the criminal justice system be improved?
Other methods besides incarcerations needs to be implemented. Trials must be fair to all, the rich and poor alike. Sentencing especially needs to be completely impartial and fair.
What is the most important part of the criminal justice system?
The criminal justice system is made up of three branches of equal importance. Unlike the TV show; in reality law and order is comprised of three parts. Police who investigate crimes, justice system that ensure appropriate punishment and the corrections system that carries out the punishment and must act to reduce recividism
Why is the effectiveness of the judicial system so important?
The justice system is supposed to deliver justice to all. Innocents need to be protected. Criminals need to be convicted. Fair justice and policing is necessary to maintain law and order throughout the nation.
Why is the criminal justice system considered a non-system?
The justice system in the United States is considered a non-system for two reasons. Firstly, because there is no centralized authority. 50,000 agencies enforce the law on behalf of various federal, state, local and tribal authorities.
Secondly, each agency cooperates with each other using a set of protocols and arrangements but largely act independently.
Majority of Americans Think U.S. Criminal Justice System is Broken, Ineffective; See Need for Change
NEW YORK—The results of new national research commissioned by the Open Society Institute, part of the Soros foundations network, say that most Americans believe the country’s criminal justice system comprises an ineffective, purely punitive approach to crime.
Three major findings are: Americans want to attack the underlying causes of crime rather than the symptoms; prevention is the nation’s premiere criminal justice goal; harsh prison sentences are being reconsidered as a primary crime-fighting tool, especially for non-violent offenders.
Attacking the Roots of Crime
According to the research, Changing Public Attitudes toward the Criminal Justice System, conducted by Peter D. Hart Research Associates, public opinion on crime and criminal justice has fundamentally shifted over the past few years. Today, the public favors dealing with the roots of crime over strict sentencing by a two-to-one margin, 65 percent to 32 percent. This is a dramatic change from public attitudes in 1994, when The Gallup Organization found 48 percent of Americans favored addressing the causes of crime and 42 percent preferred the punitive approach.
This shift has primarily come in the attitudes of those groups that traditionally favored a punitive approach to criminal justice. Today, a solid majority of every demographic group—including men, whites, and people with less than a college degree—support an approach dealing with the causes of crime. Even self-identified Republicans, who favored punishment and enforcement in 1994, now prefer a more progressive approach.
Budget Shortfalls and Prison Spending
And at a time when 42 of the 50 states are running budget deficits, the survey findings could be instructive to legislators. Given a choice of six budget areas that could be reduced to help states balance the budget, the public places spending on prisons at the top of their list, tied with transportation.
Americans would take the budget ax to prisons much more quickly than to childcare for working families, security against terrorism, education and job training, or healthcare. Hispanics and blue-collar workers are among the strongest supporters of cutbacks in prison spending
The War on Drugs
Indeed, another indicator of a paradigm shift in public opinion is the recognition that many nonviolent offenders are receiving prison sentences that are counterproductive and unduly harsh.
By two to one, Americans describe drug abuse as a medical problem that should be handled mainly through counseling and treatment (63 percent) rather than a serious crime that should be handled mainly by the courts and prison system (31 percent). The preference for a medical solution to the drug problem extends to some surprising groups: majorities of fundamentalist Protestants (54 percent) and Republicans (51 percent) believe that drug abuse is best handled by counseling and treatment, not incarceration. According to the research, Americans believe that today’s prisons are no more than “warehouses,” providing little or no rehabilitation or reentry programs, that instead simply store criminals for a period of time and then dump them back on the street, no different than when they were first incarcerated.
Changing Views on Mandatory Sentencing
Perhaps the most surprising finding regarding criminal justice policies is the degree to which the public has now turned against previously popular mandatory sentences, such as “three strikes” provisions. This is an area that links together the public’s changing perceptions of rehabilitation and drug policies, and reflects growing doubts about the “lock ‘em up” approach to crime.
Fifty-six percent of adults now favor the elimination of three strikes policies and other mandatory sentencing laws in favor of letting judges choose the appropriate sentence. This represents a substantial shift from the early-and-mid 1990’s, when advocating policies like three strikes was considered a sure political winner.
Prevention is Nation’s #1 Criminal Justice Goal
Americans see prevention as the most important function of the criminal justice system, and also the function that is most sorely lacking. Several groups rank after-school activities ahead of values education as the best way to prevent crime, including Hispanics (37 percent after-school activities, 30 percent values education), 18- to 34-year olds (35 percent, 28 percent), and people with incomes less than $30,000 (36 percent, 31 percent). The preventive measure perceived to be most effective at reducing crime is character education—teaching young people personal responsibility and moral values (37 percent).
Additional key findings of the report include the following:
- 54 percent of all adults say the nation’s approach to crime is off on the wrong track, while only 35 percent say it is going in the right direction;>
- Americans are nearly four times more likely to describe the war on drugs as a failure (70 percent) than the 18 percent who say it is a success. This crosses all demographic lines;
- 77 percent of all Americans believe that expanding after-school programs and other crime prevention programs would save money by reducing the need for prisons;
- Nearly two-thirds of all Americans agree that the best way to reduce crime is to effectively rehabilitate prisoners by requiring education and job training so that once released, they have the tools to turn away from a life of crime.
These findings are supported by two other criminal justice reform reports released last Thursday, February 7, 2002, that say states are responding to fiscal crises by closing prisons and beginning to reverse the 30-year era of ‘get tough’ sentencing policies. Released separately by The Sentencing Project and The Justice Policy Institute, the studies say the public—in states with previously conservative approaches to public safety—is shifting away from support for imprisonment for nonviolent offenders and now embrace a wide array of prevention, rehabilitation and alternative sentencing approaches.
Beginning in May 2001, six focus groups were held in the Midwest, Northeast and Southeast with white swing voters, political professionals and criminal justice professionals.
Hart Research then conducted a nationwide telephone survey of 1,056 adults from September 6-17, 2001. The sample included a representative national cross section of 804 adults, plus oversamples of 101 African Americans and 151 Hispanics. The minority oversamples were weighted to match their incidence in the U.S. population. The survey’s overall margin of error is +3.5 percent, and is higher for specific subgroups.
A large majority of the interviews (863) were conducted before September 11. From November 30 through December 2, 2001, Hart Research conducted a shorter follow-up survey among 1,014 adults to assess whether key attitudes toward criminal justice had shifted since September 11. The survey revealed little or no movement on questions measuring core criminal justice attitudes.
The Open Society Institute, a private operating and grantmaking foundation, is part of the network of foundations, created and funded by George Soros, active in more than 50 countries around the world.
OSI’s U.S. Programs seek to strengthen democracy in the United States by addressing barriers to opportunity and justice, broadening public discussion about such barriers, and assisting marginalized groups to participate equally in civil society and to make their voices heard. OSI U.S. Programs challenges over-reliance on the market by advocating appropriate government responsibility for human needs and promoting public interest and service values in law, medicine, and the media, by supporting initiatives in a range of areas.
These areas include access to justice for low and moderate income people; judicial independence; ending the death penalty; reducing gun violence and over-reliance on incarceration; drug policy reform; inner-city education and youth programs; fair treatment of immigrants; reproductive health and choice; campaign finance reform; and improved care of the dying.
Fixing A Broken Justice System
Our criminal justice system is broken. Our nation’s laws should focus on imprisoning the most dangerous and violent members of our society. Instead, our criminal justice system traps non-violent offenders – disproportionately African-American men – in a cycle of poverty, unemployment, and incarceration. For far too long, elected officials in both parties have sought to appear tough on crime by imposing harsh mandatory minimum sentences at the federal level, even for minor non-violent offenses.
More times than naught, non-violent ex-offenders face daunting obstacles when trying to successfully rejoin society after serving their time. Many find that employers don’t want to hire them once they have been released from prison, and in several states they are also stripped of their right to vote.
In addition to the steep costs imposed on these individuals, the financial cost to the American taxpayer has skyrocketed as well. Our nation’s federal prison population has ballooned to three times what it was in 1991, and Congressional appropriations for federal Bureau of Prisons operations in fiscal year 2014 totaled a staggering $6.86 billion.
I have responded to these challenges by introducing several pieces of legislation that would reform some of the more troubling aspects of the criminal justice system for non-violent ex-offenders.
On April 29th, 2015, I introduced the Reclassification to Ensure Smarter and Equal Treatment Act (the RESET Act) of 2015 with Senator Brian Schatz (D-HI). This bill reclassifies certain low-level felonies as misdemeanors, including simple possession of drugs. It also eliminates the crack-cocaine distinction which has had a proven racially disparate impact. It also requires that all savings derived from the reduction in prisoners be sent to to the General Treasury to reduce our national debt and to the Federal Crime Victim Assistance Fund. The RESET Act will reduce racial disparities in our sentencing laws and push our criminal laws to focus on violent crime, rather than non-violent drug offenses.
On May 21st, 2015, I introduced S. 1441, the Stop Militarizing Law Enforcement Act, with Senator Brian Schatz (D-HI). This bill bans the Department of Defense from transferring military-grade equipment to local and state police officers – including Mine-Resistant Ambush Protected Vehicles, drones, and explosive ordinance. We must ensure that police have the right equipment to protect our communities but we must also ensure that equipment that was designed for the battlefield is not used for civilian purposes.
On March 26th, 2015, I signed on as an original co-sponsor to the first body camera introduced in the United States Senate – the Police Creating Accountability by Making Effective Recording Available Act (the Police CAMERA Act) of 2015. Introduced by Senator Brian Schatz (D-HI) with the consultation of multiple police departments across the country, this bill creates a funding program through the DOJ to help police departments purchase body cameras. It also requires officers who accept funding to follow privacy and transparency guidelines to be developed with the communities that they serve. Body cameras are an important tool for law enforcement and this legislation will ensure that grantees will use them in a manner that will strengthen the relationship between law enforcement and the communities they serve.
On Feb. 2, 2015, I introduced S. 353, the Justice Safety Valve Act, along with Senate Judiciary Chairman Patrick Leahy (D-VT). The Justice Safety Valve Act is a bill that would allow judges greater flexibility in determining appropriate punishments for certain non-violent federal crimes that carry a mandatory minimum sentence. Judges would be required to provide notice to all parties and to state, in writing, the reasons justifying the alternative sentence. By giving judges greater flexibility, they will not be forced to administer needlessly long sentences for non-violent offenses where they may not be warranted.
Additionally, on March 9, 2015, Senator Cory Booker (D-NJ) and I introduced S. 675, the Record Expungement Designed to Enhance Employment Act (the REDEEM Act) of 2014. The REDEEM Act is designed to: 1) offer a path to sealing the federal criminal records of non-violent adult offenders; 2) allow for the sealing and expungement of juvenile non-violent criminal records under certain circumstances, and; 3) restrict the use of juvenile solitary confinement.
Likewise, on February 11, 2015, I partnered with Senator Harry Reid (D-NV) to introduce S. 457, the Civil Rights Voting Restoration Act. This bill would restore the right to vote in federal elections for all non-violent felons who have completed their sentence.
On January 26, 2015, I introduced S. 255, the Fifth Amendment Integrity Restoration Act (the FAIR Act). This legislation is designed to protect the rights of innocent property owners by reforming civil asset forfeiture procedures. The FAIR Act would reestablish the principle that a property owner is innocent until proven guilty by requiring the government to prove that a property owner in a forfeiture case either intentionally used or knowingly gave another person consent to use their property in the commission of a crime, or was willfully blind to the criminal activity. Furthermore, the FAIR Act would eliminate the federal “equitable sharing” program and ensure forfeited assets are deposited in the U.S. Treasury’s General Fund, rather than returned to law enforcement agencies. Law enforcement seizures should be motivated by public safety, not financial rewards.
SHAPIRO: We’re Looking At A Political Crisis
If there is no extraordinary basis for this raid, then what we are looking at is a crisis in American governance right now.
I would have preferred to have put this article in my Federal Government posting, but the file proved to be non-compliant, so I put it in the Judicial system instead. It does after all fit here as well, since it does involve not the DOJ but the FBI. This event is really scary. It proves that nobody is safe in this dictatorial government that we are experiencing now. Under Biden administration the Constitution doesn’t seem to matter anymore. It is just so much paper.
The FBI raided Mar-a-Lago — some of the biggest news in years. According to The New York Times, “Former President Donald J. Trump said on Monday that the F.B.I. had searched his Palm Beach, Florida, home and had broken open a safe — an account signaling a major escalation of the various investigations into the final stages of his presidency.”
Here is the bottom line: The F.B.I. is not trusted by a significant percentage of Americans. A majority of Republicans and Independents do not trust the F.B.I., according to polling data. What the F.B.I. just did requires extraordinary institutional trust. But this is an FBI under the auspices of a current administration raiding the home of the leader of the last administration and the likeliest potential nominee for the opposition come 2024.
The raid appears to be pretextual — because if you’re going to do something like this, there had damned well better be a crime. The crime can’t be something like “the President of the United States brought stuff with him when he left office.” Bill Clinton brought half the White House with him when he left office, and he was never raided. It can’t be “the President of the United States has a battle with the National Archives over material” — especially if what we are talking about here is not particularly important material. It must be more than that.
Then there’s the problem that the President of the United States has plenary authority to declassify anything he wants while he is in office. So all the other cases being referenced this week with regard to situations in which people have mishandled classified material are referring to people who were not the President of the United States. For example, former Clinton national security adviser Sandy Berger received a misdemeanor charge in 2015 for stuffing classified documents down his pants, and, in 2016, the F.B.I. investigated Hillary Clinton’s mishandling of classified documentation. She could not declassify anything; she was the Secretary of State. She was not the President of the United States. And she was never actually raided. Remember, they grabbed Anthony Weiner’s laptop; they went in a variety of directions trying to garner Hillary Clinton’s emails. Despite the fact that James Comey announced that it was actually “[p]ossible that hostile actors gained access to Secretary Clinton’s personal e-mail account” because of her mishandling of the classified documents, her house was never raided. Her offices were never raided by the F.B.I..
And then for several years under President Trump, the F.B.I. actively attempted to undermine the President of the United States on pretextual information provided by the Clinton campaign on the basis of the Steele dossier. James Comey, when he was head of the F.B.I., approached Donald Trump to launder the Steele dossier into the press — knowing that there was nothing in the Steele dossier that had been verified. Comey told him about it simply so that the media could then run with the story that the Steele dossier had been presented to President Trump and, therefore, was newsworthy. That prompted years and years of investigations down rabbit holes that led nowhere with regard to Russiagate.
Trust in the FBI is at an all time low, and yet it’s the F.B.I. under Christopher Wray — apparently with a warrant that had to be signed off on by the DOJ and Attorney General Merrick Garland — now initiating a raid into the former president of the United States.
Could there theoretically in some world be a rationale for this sort of activity? Sure, there could. But is that going to have to be a damned extraordinarily solid — bedrock solid — rationale with serious underlying evidence? It had better be – or what we are looking at is a political crisis. When a current administration is investigating former administrations to the point of sending the F.B.I. into their home to pick up documents on the basis of not handing them over to the National Archives — even during negotiating — it looks more like an attempt to take Donald Trump out of the running come 2024 than anything else. Or maybe, nefariously, it’s an attempt to elevate Trump for 2024. We don’t know. But here is what we do know: If there is no extraordinary basis for this raid, then what we are looking at is a crisis in American governance right now. It looks like the intelligence apparatus is being weaponized against the opponents of a political administration.
And down the road, if this comes to nothing and Donald Trump runs and loses, do you think that there are going to be a lot of people who are going to trust that he actually lost? Again, the trust in our institutions is so low right now, and they’re exacerbating all of the worst possibilities in American politics.
And I’m amazed to see so many people on the Left today, people highly critical of the cops, are saying things like, well, you know, they wouldn’t do this without a basis. Really? Wouldn’t they? You guys were defunding the police five seconds ago, but now when they’re targeting your political opponents, you’re all in favor of it?
I’m on the conservative side of the aisle, and at the very beginning, I was willing to let the F.B.I. have a lot of rope when it came to, for example, Russiagate. Then it became clearer and clearer that the whole thing was a farce, and my trust in that institution was undermined, just as many Americans’ trust in that institution was undermined. Now, I have some very serious questions as to what the hell they think they’re doing, so they’d better get out there with the evidence and with the warrant.
The people who are doubtful — the people who think this is a crisis — are not wrong so far until the evidence is shown. No one is taking this one on faith. No one. Christopher Wray of the F.B.I. needs to show us what he’s doing. Merrick Garland needs to show us what he’s doing, considering that he’s spent his presidency going after police departments for no reason, suggesting to go after states if they don’t cram down gender affirming health care (i.e., sex changes on small children). Why exactly would I trust you?
According to The New York Times, “The law governing the preservation of White House materials, the Presidential Records Act, lacks teeth, but criminal statutes can come into play, especially in the case of classified material. Criminal codes, which carry jail time, can be used to prosecute anyone who ‘willfully injures or any depredation against any property of the United States’ and anyone who ‘willfully and unlawfully conceals from those mutilates, obliterates or destroys’ government documents.”
This is amazing. The statute that Hillary Clinton was investigated under did not suggest that she needed to have intent to, for example, give the documents to a foreign adversary. All it suggested was that negligence in the handling of the documents was criminal. But Comey completely rewrote the statute. Why? Because he didn’t want to indict the actual nominee of the Democratic Party at the time. So now there’s somebody just as important as Hillary Clinton was in 2016 — more important because he’s been President of the United States — and they’re trotting out the Presidential Records Act here?
According to The New York Times, “The items in the boxes [seized by the F.B.I.] included “documents, mementos, gifts and letters. The archives do not describe the classified material it found other than to say it was ‘classified national security information.’ The question of how Trump handled sensitive material and documents is complicated because as President, he has the authority to declassify any government information. It is unclear whether Trump, before leaving office, had declassified the materials the archives discovered in the boxes.”
They don’t even know whether he declassified this material, and they’re still raiding him? If that is what this boils down to, some sort of miscommunication in which the F.B.I. goes after the former President of the United States for a raid on his home because there was some miscommunication about the identification of documents, there’s going to be hell to pay. The adjudication of how this is going to work in our politics going forward — if all of the institutions of our government are mobilized against one side — is going to get really ugly.
‘Laid Bare For All To See’: How The FBI Raid Exposes Deep State Corruption
In the 1987 film, “No Way Out,” the character Scott Pritchard, general counsel to the Secretary of Defense, is desperate to protect his boss – and his meal ticket – by covering up the secretary’s act of murdering his mistress. The film presents its audience with a tangled web of Washington intrigue, and even 35 years ago, it brought home the lengths to which small men with large ambitions, having burrowed within the termite mound of the deep state, will go to protect their own careers and the powers that come only to those in positions of unelected authority in a bloated federal bureaucracy. “You have no idea what men of power can do!,” shrieks Pritchard at one point in the film, as his desperation to preserve his threatened career reveals the depths of his megalomania.
On Monday, the American people were given an ominous demonstration of what men of power can, and indeed will, do to crush those who oppose them. Someone watching the unfolding events need not be a member of team MAGA to look upon the FBI raid of the duly-elected 45th former president of the United States’ Mar-a-Lago estate with the deepest of concerns. One cannot help but think that the very agencies set up to protect the citizens of this nation have become hopelessly politicized and are morphing into the enforcement arm of a borderline thugocracy that has taken over D.C. I can only imagine the horror with which the Founding Fathers would have looked upon such a brazen act of federal power projection. I think it might be along the lines of, “And we thought the Redcoats were bad? Will someone explain to me exactly what we had a revolution for again?”
Although the most rank and shameless partisans within the Democrat Party, along with their trained parrots in much of the media, have been dutifully mouthing the blast emailed talking point from the DNC headquarters that “no one is above the law” (more on that in a moment), many other Democrats are looking at this FBI action with the proper level of disquiet it deserves.
Of all people, former Democratic New York governor Andrew Cuomo, certainly no fan of Trump to say the least, tweeted: “[Department of Justice] must immediately explain the reason for its raid & it must be more than a search for inconsequential archives or it will be viewed as a political tactic and undermine any future credible investigation & legitimacy of January 6 investigations.” Even some in the media are showing themselves to be the proverbial broken clock that is still right twice a day.
When asked if the pretext for the FBI raid – to wit: a search for classified documents in Trump’s possession that should have been turned over to the National Archives – is enough to warrant such a SWAT tactic, CNN legal analyst Paul Callan responded: “No, it’s not enough to warrant all this, and this is a daring and dangerous move by the Department of Justice, to serve a warrant on a former president and raid his personal residence.”
Daring, no. Dangerous, yes. There really seems to be, as of this writing (and yours truly waited a day or two to see what fruit fell from the shaken tree first), only two possible reasons for this unprecedented raid. Neither of which bring any comfort to lovers of civil liberties who believe in what seems to be a dying American Republic.
First is that this was really just “executing a search warrant” (as one State lacky in the media tried to frame it) to retrieve the classified documents. If this is the case, then the obvious question hangs in the air like a foul vapor: why was there no similar FBI raid on the home of Hillary Clinton between 2014 and 2016? Unlike the president, who can declassify anything at will, the former Secretary of State was served with a subpoena related to her use of a private server in her Chappaqua home to conduct government business. In response, her staffers destroyed several cell phones with a hammer and bleach-bitted over 30,000 emails she claimed were merely of a personal, non-governmental nature. You try that after a federal subpoena and see how long before your door gets kicked in. “Well, we’d intended to delete them before the subpoena, so…” Good luck with that.
We might also ask: how is it that Rep. Eric Swalwell (D-CA), a sitting member of Congress, can allegedly sleep with a Chinese Communist Party agent and is not only allowed to remain free of investigation, but actually continues to sit on the – wait for it – House Intelligence Committee?
Then there are the former NSA and CIA directors who demonstrably perjured themselves before Congress only to be rewarded with media consulting gigs. Why does Paul Pelosi’s stock trading not get the Martha Stewart treatment? Any bets on if his DUI vanishes without a trace, with no media curiosity as to why? And, of course, there is the Hunter and Joe Biden multi-million dollar influence-peddling racket and the many brazen crimes Hunter videotaped himself committing.
It goes on and on, and nothing listed above is anything that hasn’t already been said a thousand times. Nevertheless, it bears repetition because as long as these questions remain, Americans’ trust in the government will continue to erode. And why shouldn’t it? It is as if these people somehow know that they are immune from any legal consequences for their actions – that the omnipotent State mechanism will move in to protect them. And it would seem that it has done just that.
This, then, presents us with a second possible, and more sinister, motivation for the raid: it was intended as a partisan projection of power and a message to anyone with Trump’s audacity to threaten the status quo. That same State apparatus that has been so absent in the face of blatant illegalities and improprieties committed by top Democrats has been ruthless in its pursuit of those on the other side of the aisle, as Michael Flynn tragically learned the hard way.
Only someone steeped in naivete, or hyper-partisan denial, could believe that the raid on the Trumps’ home was not at its core a political action. Some 30 federal agents spent a full day on the Mar-a-Lago grounds going through every inch of the property. They even rifled through the former First Lady’s wardrobe closets while forcing Trump’s lawyers to stand out in the scorching Florida sun as the search went underway.
While the contents of the search warrant remain unknown, the pretext of finding archive documents was reportedly used to enter the house of the party in power’s most dangerous and outspoken opponent in order to find something, anything, damning enough to prevent his run for office against a failed president in 2024. And they may find something accusatory… as they would most likely find in any of our homes as well. Why? Because the legal statutes have become so gargantuan that, as civil liberties attorney Harvey Silverglate has pointed out, every day the average American commits three felonies without even realizing it. This presents a target-rich environment for a government machine looking to take down anyone standing in its way. As Stalin’s NKVD enforcer Lavrentiy Beria famously asserted: “Show me the man, and I’ll show you the crime.”
The shift towards authoritarianism over the past decade has been a trend we can no longer ignore. As The Daily Wire reported, according to a National Issues Survey of 1,000 people, nearly eight in ten Americans, 79.3%, responded that “[t]here are two tiers of justice in the American justice system: one set of laws for politicians and Washington D.C. insiders vs. one set of laws for everyday Americans.” If there is any silver lining to the FBI raid on the former president’s residence, it is that it has now laid bare for all to see the true corruption of the State. It is now known that there are no lengths to which those in power won’t go to in order to protect said power and punish any who threaten to upend their lucrative apple cart.
Throughout my adult life, I have been a Democrat, a Republican, and now a staunch Independent. I have voted across party lines in the past and have abstained from certain elections when I found both candidates unworthy of my vote. But I see now that there is no other way to vote than to remove this corrupted and power-mad group of grifters from office. I loathe hyperbole – we see it too often for too little – but I truly believe, barring shocking evidence against Trump to the contrary, that the FBI raid places us at a tipping point. The greatest myth of nations is permanence – that we are somehow immune from the evils that have brought down great empires of the past…tyranny, despotism, one-party rule, corruption at the highest levels, a selective application of the laws for political ends, moral decay, and a hubristic bureaucracy devoid of any accountability to the public. The framers of our Constitution understood the darkening of men’s hearts once they’ve tasted power. Thus did they realize their new nation’s system of government could only function with checks and balances to hold at bay the very people who would authorize a raid on a former president while their political allies go forth and multiply without fear of consequence.
Most importantly, they understood that having a codified Bill of Rights was not enough. After all, laws and rights are only as good as the willingness of those who wield power to enforce and protect them (the late great Justice Antonin Scalia reminded us that the USSR had a bill of rights too). Otherwise, as the framers said, they were a mere “parchment guarantee.” Words on paper, nothing more. Something more is desperately needed in today’s legislative and executive branch. John Adams once observed that our Constitution was made only for a “moral and religious people.” He would be gravely disappointed, and frightened, at those who sit in the halls of power today. It is up to us to keep the faith this November, throw the corrupt officers overboard or in the brig, and bail out this sinking ship before it founders.
cato.org, “Our Broken Justice System.” By Clark Neily; legalscoops.com, “5 Biggest Problems with the Outdated Criminal Justice System.” By Jacob Maslow; opensocietyfoundations.org, “Majority of Americans Think U.S. Criminal Justice System is Broken, Ineffective; See Need for Change.”; paul.senate.gov, “Fixing A Broken Justice System.” By Rand Paul; dailywire.com, “SHAPIRO: We’re Looking At A Political Crisis: If there is no extraordinary basis for this raid, then what we are looking at is a crisis in American governance right now.” By Ben Shapiro; dailywire.com, “‘Laid Bare For All To See’: How The FBI Raid Exposes Deep State Corruption.” ByBrad Schaeffer;
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