The United States system of justice has gone from the most respected in the world just decades ago, to a statistical nightmare, and possibly, the least just on earth. Our nation now has the highest conviction rate in the world (98.6%), the most laws with prison as a penalty (314,000 at the federal level alone), more police agencies with arrest powers (18,000+), and more prisoners (7.3 million at present), than any dictator or tyrant on earth on in history.
96.8% of those charged end up pleading guilty rather than risk the stacked deck of a trial. 77% are simply held in jail without bond until they make that "voluntary" decision to plead guilty, though there is nothing "voluntary" about such a decision when a man or woman is illegally incarcerated in a horrible county jail. The Speedy Trial Act of 1974 requires any prisoners not tried within 90 days to be released, but neither state nor federal government prosecutors and judges adhere to this statute or Sixth Amendment provision today, in my personal experience and in studying cases at both state and federal level.
How did this happen?
First of all, Congress overstepped its constitutional boundaries by creating this myriad of federal statutes outside of the authority granted to that body by We the People. Section 8 of Article 1 of the U.S. Constitution only allows Congress to punish Piracy and Counterfeiting, yet that venerable institution has now invented over 14,000 ways to send us to prison. All other "crimes" but piracy and counterfeiting were to be the province of the States. Worse, Congress has delegated its constitutional law-making authority to a vast array of federal agencies, none of which I can find in my Constitution. This alphabet soup of bureaucracies has instituted 300,000 more laws carrying prison as penalty without any constitutional basis or authority, at the whim of non-elected officials.
It's as if we chose Congressman Smith to represent us, but once he got elected, he decided to abdicate those duties of office to someone else, in violation of his oath. From an authorized base of 2 punishments, federal government has now unilaterally and illegally foisted 314,000 punishments on our nation.
According to a study by Harvard Law School, as related by Attorney Harvey Silverglate (Three Felonies a Day-2010), the average American now commits three of these federal "felonies" a day, and does not even know it. The laws are so vague and obscure that no reasonable person would know they were in violation. As Cicero wrote 2,000 years ago, "The more laws, the less justice."
So how do prosecutors and judges get away with enforcing these unconstitutional statutes and violating our constitutional protections in the process, by just holding us in county jails until we cry "uncle"?
Answer: Because they can.
The judiciary granted itself immunity from prosecution for its own crimes against We the People in a string of Supreme Court decisions beginning with Pierson v. Ray in 1967. Judges and prosecutors now enjoy self-granted "immunity" for their crimes against the public as long as they are at work when they commit them. That is how and why our judiciary and its chief actors now violate constitutional rights, ignore the rules of criminal procedure, and trash the statutory protections put in place to prevent such behavior, on a regular if not daily basis. In a review of approximately 400 criminal cases, I have yet to find an exception to this statement, so I'm sticking by it.
Judges and prosecutors pay no penalty for their crimes against us, unless they are acting completely outside of their jurisdiction or authority, but even then, they are only subject to "peer review" not prosecution.
That is how we got to this sad state--too many laws and no oversight or penalty for those charged with enforcing them. There is a federal statute, 18 U.S.C. section 242, which makes such violation of our rights a crime punishable by prison, but at present, there is no independent authority to prosecute the prosecutors.
The solution? Rein in these rogues by making them liable and punishable for violating the statutory protections and constitutional provisions designed to protect us from them. If, for example, the judges and prosecutors who have held millions of Americans in jail for months and years in violation of The Speedy Trial Act, were subject to imprisonment themselves for so doing, county lock-ups would empty overnight and rule of law might be re-established.
It is time for our nation to devolve back to equal treatment under the law. That must include those who are in charge of enforcing it.
Viva la devolution.
Born in North Carolina and educated at the University of Virginia, Wake Forest University and Caledonian University in Scotland, Howell now lives in Warsaw, Poland with his wife, Dr. Magdalena Iwaniec-Woltz. Howell is the European Correspondent for The Richardson Post and Chairman of The International Centre for Justice.