Public Comment

Introduction

This series of articles began by introducing a concept of crime that was not based on law, but rather on an action’s existential effects. Traditionally, crime is understood as a violation of the law. Since this implies that a legal system determines what constitutes a crime, it facilitates a form of autocracy. Insofar as an administrative structure or organization determines whether something constitutes a crime or not, it is not the person suffering from that action who does so. Decisions are made for people rather than with them. To make policy without the participation of those who will be affected by the policy is to dispense with any pretension to democracy. For democracy to exist, those who will be affected by a policy are, and must be, the ones who conceive and institute the policy that will affect them.

We seek to approach crime in a democratic manner. In this vein, we would define a crime as any action that injures a person, or a person’s social standing, as seen by the person affected by the action. For instance, any action that deprives a person of their personal property or their access to their personal property, against their will, or which damages or interrupts their valued relations to other people, would constitute a crime against them. It would be considered a form of victimization. The Law sees it from outside the action, through an institutionality. From within the relation between an accused perpetrator and one charging injury, the jurisprudent dialogues that would provide an arena for the accused to deny and defend themselves would be quite different (de-institutionalized, and not based on conflict).

In sum, crime is an injurious relation between a perpetrator and a victim in which it is the victim who gets to say if (and how) an injury has been done to them. The focus of this perspective is that of the one injured, rather than the institutional interests of a judicial system. Slavery or segregation would never have been possible under this alternate perspective.  

When a police officer shoots and kills someone running away, existentially that cop has committed murder. In the eyes of “the law” and his department, his act can be seen as lawful. When we examine the system of laws called “victimless crime laws,” we are looking at something ridiculously irrational and autocratic with respect a democratic approach to crime.  

How, then, are we to understand the concept of a “crime wave.” And it has become important since police departments are using it as a rationale to demand increased spending on the police. As an outbreak of criminal activity that injures many people over the course of time, a crime wave supposedly exceeds normal social condition. But who is it who should get to define it as such? Typically, it is the police or the political structure that warns the populace, even though that has an element of self-interest. Political self-interest would obviate the ability of the people to define a “crime wave” committed by the political structure itself.  

Let us look at the "crime" called “plea bargaining.”  

Plea bargaining  

When a cop arrests a person pursuant to law enforcement, we generally understand this to mean there is evidence, witness testimony, etc. sufficient to bring the case to trial if the suspect pleads “not guilty.” But when a cop arrests someone purely on suspicion, without evidence, or without probable cause, simply on the basis of the person having refused to cooperate with the cop, or for having objected to the cop actions as harassment, a plea bargaining situation is set up – generally to protect the cop from having engaged in a false arrest.  

The absence of evidence or probable cause does not necessarily mean no crime has been committed. But it does mean that the arrest was as yet unwarranted. In any event, the arrest brings the person arrested under the jurisdiction of a prosecutor, who then decides what to do with respect to any charges. If the government decides the person is someone they want to imprison (for instance, for being black, or a member of a Latino youth group, or an environmental or anti-war activist, etc.), then it has the machinery of the plea bargain to do so. And, in such cases, that machinery gives the arrest a false validity.  

The first step in setting up a plea bargain is to charge the person arrested with a serious crime, something that will carry a heavy prison term. It will be something the person knows they have not done. For that reason, the person will object and deny the charge. Against the prosecutor’s claim of having evidence, the person will insist on their innocense, and promise to plead “not guilty.” The prosecutor then informs the person that, because a trial will cost the city money, the prosecution will insure that the person is convicted.  

Those who are knowledgeable about this process know that the odds the prosecutor can do so are quite high. It is precisely because of the absence of evidence for the serious crime charged that a real defense against it becomes almost impossible. It is not possible to prove that something didn’t happen. One can narrate the event’s non-existence, but no degree of logic or evidence can be brought in at the level of proof. It is the absence of proof or evidence for the original charge that makes the system work.  

In addition, the prosecutor will have resources at hand to make a circumstantial (though fabricated) case, in which the arresting (harassing) officer will be the main witness. Though an element of corruption is thereby introduced into institutional jurisprudence, it is rarely brought to public attention. In general, popular opinion already assumes that the fact of an arrest constitutes "evidence" that a crime occurred (this is the “myth of truthfulness” attributed to law enforcement). It is those knowledgeable about the plea bargaining machine who know the extent to which the deck is stacked against the arrestee.  

Should the person insist that they will plead not guilty anyway, out of self-respect, the prosecutor will promise not only to win a conviction, but obtain the maximum sentence. In other words, this agent of the law will be ready to punish a person for their sense of innocence, their self-respect, and their human rights. Under any ethics of lawfulness, this would be an atrocity. But in reality, as soon as the fabricated “serious crime” was charged, it would no longer matter whether the person had committed any actual crime at all. The principle of justice has already been thrown out (by the "justice" system itself), and replaced by the play of power. Once justice is thrown to the curb, human rights go with it.  

As soon as the prosecutor sees that his scare tactic has worked, he will offer the bargain. He tells the person that if they will plead guilty to a lesser charge, the prosecutor will go for a lighter sentence. That simply means confessing to the lesser charge, again in total separation from whether one had done it or anything else. It is pure blackmail. One’s choice is between doing maximum time for insisting on one’s innocense, or doing minimum time for agreeing to a prosecutor’s lie.  

What we have, in sum, is a system that does not represent law (blackmail is a crime), uses legal violence, and violates social ethics to a degree transcending the limits of training as well as administrative regulations. Since there would be no bargain without the person’s confession, the bargain represents an act of fraud. Through this compilation of criminal aspects, the procedure known as “plea bargaining” signifies that the aim of this judicial system, this operation of the "force of law," is simply a procedure to throw people into prison. Nothing more.  

It is that "cultural" structure that has been so adamant in framing movement activists over the last 40 years (including Mumia, Peltier, Pratt, Sundiata Acoli, Poindexter and Rice, Ruchell Magee, on and on – it is a very long list). All were convicted on perjured testimony. Geronimo Pratt, for instance, was in Oakland when the murder of which he was accused occurred in Los Angeles. The FBI knew this because they had tapped phone records of him in Oakland from that day. He was convicted on the testimony of an FBI agent. It took Pratt 22 years to clear himself. What this cultural structure, which is clearly white supremacist, is interested in is not justice but imprisonment. That is why the US today has the largest prison system in the world. It is not the largest country, but it is the one with the most people in prison. Each time a city increases appropriations for the police, it is saying it wants more.  

In sum, plea bargaining is based on three things; police harassment of people (profiling most often teenagers and people of color), police insistence on social control (through their criminalization of individuals), and police arrest activity. Harassment is based on three forms of law: victimless crime laws, the raising of police suspicion (subjectivity) to the level of evidence (Terry vs. Ohio), and the ability to demand militarized obedience to police commands. Victimless crime laws give the police the ability to stop and investigate (often search) a person at will. Because there is no complainant (the "crime" is victimless), the cop plays the role of a "complainant." It is the person accused by government who is the "victim" of the victimless crime law.  

The plea bargain is an abuse of law, a denial of justice, a form of oppression, and thus a crime against the people.  

Harassment of young people  

The mechanics of plea bargaining already represent a crime wave committed by the government. But there is a special category of target that needs to be reviewed. It is the fact the police often campaign against young people, engaging in a process of discrimination that eventually feeds a person into the machinery of the plea bargain.  

When young people come to the attention of the police, usually because they congregate on the street, they get their name on a list. That list is then used for future approaches or harassment. In other words, it constitutes the early stages of a "record," while at the same time being the source of a profile. The existence of a record is then used as "cause" for the police to watch, surveil, or detain. [cf. “Punished,” by Victor Rios, NYU Press, 2011]  

Harassment breeds resistance, especially among young people. Without worldly experience to guide toward positive organized forms of resistance, their rejection of harassment makes them easy targets for further harassment.  

There are stages in the development of a "record." And each stage becomes the basis for the next one. From warnings to tickets to juvie court dates with advisors or therapists to juvie court trials, ending too often in wholly repressive final stages, the process feeds on itself. At each stage, the person’s "record" stands in for probable cause. Because the "record" is self-generated by the police, its reality remains its use as a profile. The profile is to give young people a record in order to use the record as a means of profiling them.  

The final stages could be police violence, or plea bargaining, or long prison sentences. But in each stage, there will be the unfolding of a form of secret rage.  

It is here that the social effect of plea bargaining achieves a mythic nature. Under the rubric that the police are simply performing their function for society (aka law enforcement), the idea that arrest equals guilt is given mystical status. “They must have done something.” When the plea bargain transforms harassment into criminalization, the myth is affirmed. The more people are punished, the more their derogation becomes acceptable.  

There is an Orwellian catch  

We can say that some of those in prison on a plea bargain have committed crimes; and some haven’t. The irony about the plea bargain concept is that there is no way to tell the difference. There are no court records, no records of evidence, no witness testimony, no defense arguments, nothing. A confession, elicited through blackmail, is all there is.  

Because this is the case, I can say that everyone now in prison on a plea bargain is innocent, and there would be no way to refute my statement. (I ran this by a Superior Court judge one day, and she had to admit to its correctness.) If a statement cannot be refuted, then there is a character of truth that attaches to it. In other words, we must recognize that everyone now in prison on a plea bargain is innocent, precisely because my statement cannot be disproved. 

Some of the people who are imprisoned by the plea bargaining process may actually have done something. It could be that they had stolen some food from a market, or some jewels from a house, or engaged in selling illegal substances. Perhaps one wanted some money to take a pretty woman out on a date. or to clear a debt so the creditor would not do something rash. These are common circumstances; they happen all the time in a system dedicated to impoverishing entire classes of people. 

If there is no way to verify guilt, then the person must be innocent, and framed. And yet they are in prison. That is a crime that this society commits routinely, through its justice system. If the justice system wishes to eliminate crime waves, it should certainly start with itself.