THE DEATH PENALTY’S “FINELY TUNED DEPRAVITY CALIBRATORS” Fairness Follies of Fairness Phonies Fixated on Criminals Instead of Crimes — PART IX

For naïve followers, the notion that capital punishment is unfair is an uncritically accepted faith based on logical fallacies, unwarranted assumptions and insupportable assertions. For knowing leaders, the demand for fairness is a cynical ploy intended to abolish the penalty rather than make it fair. 


NOTE: It is the reader’s choice whether to consult or disregard the many links below. The main goal here is to be easily understood, while providing proof for those who might think that what follows is fiction. This is written to enable easy reading without looking at the links.                                                                       Where possible, links are provided directly to specific locations within linked items. Otherwise, if available, specific page or part numbers within linked items are provided in parentheses next to links. Nearly all items are freely accessible.


              “The Court thus assumes the role of a finely tuned calibrator of depravity….”                                                                                                                                                                                                                                                      Justice Byron White

                                    (h) The Judicially Created Mitigating Benefits of Repeat Violent Crime  

            One-upping U.S. Supreme Court justices, judicial murderer advocates on New York State’s highest court have gone beyond banning punishment for new criminal violence by those already serving life sentences. At least they are kept in prison when caught. In New York, clearly guilty murderers who committed prior violent crimes have been allowed to go scot-free – because they committed prior violent crimes!

            Can’t believe it? Well, an aptly entitled movie, Outrage, provides a rare – and amazingly accurate – media portrayal of the absurd lengths to which some judges go to free brutal murderers. Those who don’t trust any media should consult the dissent of three judges (236, 239):

             A defendant who commits a crime while out on bail should not be immune from questioning by police with respect to his latest criminal acts. Such a rule … benefit[s] the repeat offender….[T]he police … did not know defendant had counsel on … earlier charges [and] defendant never indicated in any manner that he desired the aid of an attorney … [T]he majority … carries the right to counsel to unheard of extremes.                                                            It is the common criminal, not the one-time offender, who nearly always … [has] at least one serious charge pending, so that the attorney in the picture can provide him with virtual immunity from questioning in subsequent investigations. … [The] majority has …provid[ed] what is in effect a dispensation for the persistent offender.    

Further details and protests concerning New York’s “embarrassing,” “incomprehensible” and “unjust” protection for career criminals can be found here and here. When career criminals have greater protection against conviction than first time offenders, this again may strike many as utterly irrational.

(i) The White Collar Fairness Exception  

Sentencing has been made irrational in two senses.

            First, when a certain point is reached, a progressively worsening criminal record magically about-faces from aggravating to mitigating, making the worst offenders “ineligible” for further punishment no matter what additional atrocities they commit.     

            Second, the lack of any criminal record makes a law-abiding individual “eligible” for far harsher punishment than if he had the most violent and depraved possible criminal record. And in New York, a criminal record may render a murderer “ineligible” not only for punishment but even for conviction.

            In sum, when punishment is determined by an obsession with criminals rather than a focus upon their crimes, sentencing becomes unrelated to the severity of crimes.                                         

            In his classic address, 74 years ago, on the role and duties of prosecutors, then-Attorney General,and later Justice, Robert H. Jackson made the following trenchant observation:

      [T]he most dangerous power of the prosecutor [is] that he will pick people … rather than…cases …. [A] prosecutor stands a fair chance of finding at least a technical violation … on the part of almost anyone. In such a case, it is not a question of discovering the commission of a crime and then looking for the man who has committed it, it is a question of picking the man … to pin some offense on him.

These words ring far truer today than in 1940: Harvey Silverglate contends that legislators have created so many non-violent crimes that everyone commits Three Felonies a Day. Others object that almost everything has been criminalized and dishonest rogue prosecutors can now place everyone under arrest.

            Now more than ever, peaceful people – considered by themselves and others to be decent, hard-working and law-abiding – are being ensnared, prosecuted, persecuted and sentenced to jail as criminals. They are being financially destroyed, with their lives and families ruined. They are being punished for doing what the most violent and depraved can do with impunity (and can do far worse).

            For example, defrauding the government is a serious crime that should not be excused. But should this result in a 14 to 41-year prison sentence for a man with no prior criminal record, which at age 52 could be a life sentence, when high court justices ordered that Ehrlich Coker not be punished at all for rape?       Was that “fair”?

            As shown in Part VIII, murder cases last decades. Sometimes they do not end until a convicted and sentenced murderer dies of natural causes. By stunning contrast, at warp speed, Ronald J. Strong, a sick 50-year-old non-violent man, was prosecuted and sentenced to jail for having an attack of uncontrollable diarrhea in a federal courthouse. As of August, 2014, a skilled gainfully employed young single mother of two, with no criminal record, faced a 42-month prison sentence for mistakenly believing a permit issued for a gun lawfully purchased for self-defense in one state would be valid in neighboring state. The Supreme Court will soon decide the fate of John L. Yates, a commercial fisherman sentenced to jail for the dastardly deed of allegedly destroying three fish. Still worse, former New York City Police Commissioner Bernard Kerik, himself having spent nearly four years in jail for a white collar crime, says he served with another commercial fisherman who was not only jailed for catching too many fish but also had his profitable business destroyed along with the livelihood of his family and a loss of tax revenue to the government (11:10). 

            It is not the purpose here to delve into courthouse diarrhea attacks, gun permits and fishing. Instead, the point is this. The “disproportionately” harsh punishment for the crimes in the cases cited cannot remotely compare to rape and murder – unpenalized rape and murder!            

There is no end to examples of prosecution and persecution of hard-working and always law-abiding individuals without criminal records – often for what many people, if not most, would not even believe to be crimes. (For more, see here, here and here.) However, those with the most barbaric records, precisely because they are the worst barbarians, have been given the “right” to commit further barbarity free from fear of any punishment.   

            Outside the Wonderland of Fairness Phonies, one needs no precise measuring instrument to understand that this is morally wrong and supremely unfair.

            All this punctuates the vast values chasm referred to in Part I One side focuses upon violent crimes; the other is fixated on protecting violent criminals and ruining the lives of decent, non-violent (166) individuals. For the Phonies, it is “unfair” to punish the usually poor violent while not going after non-violent cushy white-collar offenders, who allegedly are not much less damaging (486) than those who are violent. (The Supreme Court has allowed Yates to pursue his case in forma pauperis. So much for cases against the non-violent being confined to the cushy!) While protecting the violent, the Phonies have created a “new class” of non-violent “criminals.” There probably never has been a time in history when there has been such open warfare against these people – with lives, families, finances and businesses ruined.       

            For the Phonies, fairness is not a matter of guilt or innocence; it is a matter of protecting those guilty of violence.  And the more depraved the violence, the more they rant about “fairness.” For them, it is those who have been most law-abiding and hard-working who deserve most to be prosecuted and punished.



          Lester Jackson, Ph.D., a former college political science teacher, views mainstream media truth suppression as essential to harmful judicial activism. His recent articles are collected here.                                                                                                           _______________________________________

Copyright ©: 2014  Lester Jackson, Ph.D.

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