May 30, 2015 "Information
Clearing House" - "The
Intercept" - Bush-era House Speaker Denny
Hastert, who was
indicted yesterday, is a living, breathing embodiment of everything
sleazy and wrong with U.S. politics. That is highlighted not only by his
central role in enabling every War on Terror excess, but also by this fact:
Hastert’s ability to make such large cash payments
probably came from his career as a K Street lobbyist. He entered
Congress in 1987 with a net worth of no more than $270,000 and then
exited worth somewhere between $4 million and $17 million, according to
congressional disclosure documents.
That
common arc is more of an indictment of U.S. political culture than
Hastert himself, but he’s certainly been happily and hungrily feeding at the
trough. A political system that
essentially ensures
that
every powerful political official
becomes extremely rich is one that is inherently corrupt — as we’ve been
taught for decades about those Bad Other Countries — and that is
the most interesting and most important part of this story.
But Hastert was not indicted for any of that. Nor was he
indicted for the alleged, unspecified “past misconduct” against an unnamed
person to whom he agreed to pay $3.5 million to keep concealed.
Instead, Hastert was indicted for two alleged felonies: 1)
withdrawing cash from his bank accounts in amounts and patterns designed to
hide the payments; and 2) lying to the FBI about the purpose of
those withdrawals once they detected them and then inquired with him. That’s
it. For those venial acts, he faces five years in a federal prison on each
count.
Hastert is about the least sympathetic figure one can
imagine. Beyond his above-listed sins, he
shepherded the 2001 enactment and 2005 renewal of the Patriot Act, whose
banking provisions, in sweet irony, seemed to have played a key role in his
detection and in creating the crime of which he stands accused. His
long record in
Congress involved, among many things, denying equal rights to people
based on the “Family Values” tripe, as well as continually supporting
ever-increasing penalties and always-diminished rights for criminal
defendants. So he’s reaping what he sowed.
Moreover, because Hastert is rich, well-connected and
white, he’s highly likely to receive extremely favorable treatment from the
U.S. justice system, as
David Petreaus among many others will be happy to explain to you. That
two-tiered justice system — a super-lenient and forgiving one for the rich,
white and powerful; a relentlessly oppressive one for everyone else — was
the topic of my 2011 book, With Liberty and Justice for Some.
But there’s a reason the U.S. has become a sprawling,
oppressive penal state, imprisoning more of its citizens than any other
nation in the world, both in raw numbers and proportionally. There are
actually many reasons: the profit motive from privatized prisons, the
bipartisan nature of the “tough-on-crime” agenda, the evils of the Drug War,
mandatory minimum sentences, the disproportionate use of arrest, prosecution
and imprisonment against minorities.
But one key factor is over-criminalization: converting
relatively trivial and harmless acts into major felonies. The postal worker
who just engaged in an act of nonviolent political protest — flying a
gyrocopter to the U.S. Capitol lawn to protest the corrupting role of money
in U.S. politics — faces
up to nine years in prison on multiple felony charges. That is
over-criminalization, as are the shamefully large number of people in prison
for selling prohibited narcotics to consenting adults who wanted them, or
even for just possessing them.
Radley Balko, who has done among the best work on the
broken U.S. criminal justice system,
said
this morning: “Dennis Hastert is one of the last people I want to be
defending. But these charges are the picture of over-criminalization run
amok.” Indeed, who is the victim in Hastert’s alleged crimes, which — again
— do not include the “past misconduct”? He literally faces felony
counts and years in prison for hiding an agreement to pay someone claiming
to have been victimized by him, an agreement that is perfectly legal and
standard (even common) when done with lawyers as part of an actual or
threatened court case.
Over-criminalization breeds injustice and abuse of power.
As the New York Times’s Adam Liptak reported in a
great 2008 article on the uniquely oppressive U.S. penal state: “people
who commit nonviolent crimes in the rest of the world are less likely to
receive prison time and certainly less likely to receive long sentences.”
Moreover, “Americans are locked up for crimes — from writing bad checks to
using drugs — that would rarely produce prison sentences in other countries.
And in particular they are kept incarcerated far longer than prisoners in
other nations.”
Long-time appellate judge Alex Kozinski co-authored
an essay entitled “You’re (Probably) a Federal Criminal,” noting how
easy it is to become a felon. “Most Americans are criminals, and don’t know
it, or suspect that they are but believe they’ll never get prosecuted …
Violations are so common that any attempt to go after all criminals would
sweep up millions of people.” The essay cited as examples misfiling tax
returns even inadvertently, smoking marijuana, betting on a sporting event
with a bookie, lying to a government bureaucrat — all acts that can be, and
have been, prosecuted as federal felonies. In their book
The Politics of Injustice, the criminologists Katherine Beckett and
Theodore Sasson documented:
In 2000, police arrested more than 2 million
individuals for such “consensual” or “victimless” crimes as curfew
violations, prostitution, gambling, drug possession, vagrancy, and
public drunkenness. Fewer than one in five of all arrests in that year
involved people accused of the most serious “index” crimes [such as
assault, larceny, rape or homicide].
When everything — even trivial transgressions — can become
a serious felony, it empowers law enforcement to punish whomever they want.
It’s a key reason they are able to basically use arrest and prosecution
powers to control and punish minority populations in the U.S. The arrest and
destruction of Eliot Spitzer for prostitution was accomplished through the
same type of detection system and charges being used against Hastert.
Turning someone into a felon and putting them into prison
for years, or even threatening to do so, is one of the most
repressive things a government can do to its citizens. Only serious acts of
wrongdoing should enable that. The “past misconduct” in which Hastert
allegedly engaged may qualify, but that’s not part of his
charges. The acts for which he has been charged — hiding withdrawals and
lying to the FBI about why he wanted that money — do not qualify.
What we have here is a classic case of the warped American
justice system. Hastert’s seriously bad and corrupt acts will remain
unpunished. And the acts for which he is being punished, at least as laid
out in the indictment, are not seriously bad and corrupt. One can harbor
contempt for Hastert (as I do) while still recognizing the disturbing
aspects of the U.S. justice system revealed by his indictment.
UPDATE:
In the indictment, the DOJ made the decision not to expressly specify the
“past misconduct” Hastert sought to conceal. Nonetheless, federal law
enforcement officials apparently
spent the day running around
leaking to
media outlets what the indictment worked hard to insinuate: that
“Hastert paid a man to conceal sexual misconduct while the man was a student
at the high school where Hastert taught.” So this seems to be a case where
federal prosecutors wanted to punish someone for a crime they couldn’t prove
he committed, so instead reached into their bottomless bag of offenses to
turn him into a criminal for something else.
Obviously, “sexual misconduct” with a student is a serious
offense, but that still is not part of what Hastert is charged
with. In order to punish him for that crime, the government should charge
him it, then prosecute him with due process and convict him in front of a
jury of his peers. What over-criminalization does is allow the government to
turn anyone it wants into a felon, and thus punish them without having to
overcome those vital burdens. Regardless of one’s views of Hastert or his
alleged misconduct here, it should take little effort to see why nobody
should want that.
Photo: Jay L. Clendenin-Pool/Getty Images -
Email the author:
glenn.greenwald@theintercept.com