The Winds of Reform

Over the last few months, there has been a large outcry calling for change to the Federal Prison System of the United States. The charge is being led by people of influence such as Attorney General Eric Holder.  Michael Douglas is another leading activist.  He and more than 500 celebrities have signed a petition demanding reform and sent it to President Obama.  Signatures include those of Leonardo Dicaprio, George Clooney, Matt Damon, Brad Pitt, Angelina Jolie, Robert Downey Jr. (who spent time in the Feds), Jay Z, Beyonce, Katy Perry, Rihanna, Kim Kardashian, Scarlett Johansson, Justin Timberlake, to list a few.

Members of Congress are also finally waking to the drastic changes needed in the American prison system.  For the first time, bipartisan bills are being sponsored in both the House and Senate to grant more good time for non-violent offenders, whereby one could earn up to 35 percent off his or her sentence through good behavior.  This would apply to someone like me who has an exemplary conduct record.

Recently, Eric Holder gave a speech to the American Bar Association in San Francisco, stressing reforms needed. "Too many people go to too many prisons for far too long and for no truly good law-enforcement reason," he said.  He went on to emphasize the need for returning nonviolent men back to their families and children who have suffered enough, who've paid for their crimes.  Of late, he continued his push for reform in a statement to USA Today, "New consideration should be given to the reinstatement of parole for federal offenders to help restore fairness in the criminal justice system and relieve overcrowding." 

If parole were to be reinstated, I'd be eligible for release within the next six months under the old federal parole law.  Presently, there is a grass roots movement among American citizens calling for the reinstatement of federal parole.  I ask you to join the throng by signing the Resurrect Federal Parole Proposal at:

http://www.petition2congress.com/11818/resurrect-parole-federal-prisoners

The United States has less than 5 percent of the world's population, but it has nearly 25 percent of the world's prisoners. The U.S. leads the world in producing prisoners, a reflection of a relatively recent and now entirely distinctive American approach to crime and punishment.  Criminologists and legal scholars in other industrialized nations say they are mystified and appalled by the number and length of American prison sentences.  For instance, there are now over 2.3 million people behind bars in the U.S., more than any other nation, including China, whom the American Government accuses of human rights violations.  China, which is four times more populous than the U.S., has 1.6 million people in prison.  It's somewhat ironic that the United States, who purports to champion freedom and human rights, imprisons far more people than a country it accuses of violating those very same freedoms and rights. 

The United States comes in first, too, on a more meaningful list from the Prison Studies Center, the per capita rate of incarceration:  We have 751 people in prison for every 100,000 in population. (1 in 100 adults in the U.S. is locked up.)

The only other industrialized nation that comes even close is Russia, with 404 prisoners for every 100,000.  Again, Russia, like China, is hardly a standard bearer of human rights, and is notorious for punishing its citizens, as the recent case of the Russian oil tycoon, Mikhail Khodorkovsky points out.  After 10 years in prison, Khodorkovsky was released last week, with the help of the German government.  Berlin had negotiated with Moscow for two years to secure his release. The former Yukos Chairman's first press conference was telling: "People talk about my release as being a Mandela moment; today without a doubt this is not so. Our society has not yet accumulated such a potential for protest that would allow one pebble to start an avalanche."

In other words, Putin is not unlike Lenin and Stalin.  The Kremlin remains largely unchanged.  And yet, America's per capita incarceration rate doubles that of a nation infamous for violating human rights.  The United States locks up nearly 100% more of its citizens than Russia does.  And lock up is hardly an understatement.  We literally sentence people to decades in prison and throw away the key.  Rarely do judges and prosecutors look at the merits of a case and take the time to evaluate all mitigating circumstances. We seem to be in the throes of a "more the merrier" approach to imprisonment, an assembly line model of sentencing, coercing individuals into plea deals to avoid trial, often using underhanded tactics to do so. The legal representation that defendants receive is often egregious and incompetent as the following example illustrates.

When a friend asked John Horner if he could buy some painkillers, the 46-year-old father of three didn't see a problem.  The Osceola County, Florida, resident had been taking prescribed painkillers for years after losing his eye in an accident, and agreed to sell his friend, "Matt," four unused bottles.  After the pills exchanged hands, Horner discovered that "Matt" was in fact a police informant, and he was charged with dealing drugs.  At the advice of his public defender, Horner pleaded guilty, and was later sentenced to the mandatory minimum of 25 years in prison.  He will be 72 by the time he is released, and his three young children will have grown up without him.  "Matt," who turned out to have a long history of drug offenses, was more fortunate; he received a reduced sentence of just 18 months after informing on Horner, and is now free. (This story was printed in The Week magazine, September 20, 2013).

If you think this story is an outlier, you're gravely wrong.  This tends to be the norm. I've seen it repeated hundreds of times in my study of the law these past four years.  I know dozens of individuals whose cases are similar to the Horner case.  The competence level of public defenders and many licensed attorneys is subpar at best. 

My case is a further example of such incompetence.  I was promised/guaranteed a sentence and coerced into a plea deal that was disastrous, admitting to things that were not true.  Counsel not only mischaracterized my exposure, he completely misunderstood/misstated the law relevant to my case.  He utterly lacked a basic understanding of financial instruments, even more so, failed to investigate the very contract that every investor signed that lies at the heart of my case.

Most who are familiar with my case have heard that I was convicted of running a Ponzi scheme. (I wasn't. I involuntarily and unintelligently pled guilty to one count of wire fraud and one count of filing a false income tax return).  Yet, the Ponzi scheme angle was spun to the media.  A Ponzi scheme has no underlying investment.  Bernard Madoff, the most famous schemer of all, did not make one single investment related to his fund, or one stock trade.  He ran a Ponzi scheme.  I traded close to one billion dollars worth of stock, held open positions daily in the market, and the fund was profitable at times, up over 50 percent through 2005, 24 percent through November of 2006. The fund had an underlying investment – stock holdings. Is that the mark of a Ponzi scheme?  No.  Yet, none of this was researched by counsel.  Had counsel investigated the contract signed by investors, a fiduciary agreement bound by law, it would have disproven most of the government's assertions. I was ignorant to this, having no understanding of the law at the time.  I was unable to aide my own defense as I was locked in a cell fighting my case with no access to the internet, law materials, relevant case law, nothing in which I could learn the law and mount an adequate defense. (This is a story for another time and only the tip of the iceberg.)  Even when I insisted that counsel argue certain issues, he refused to do so.  The result of this has been a nightmare experience I would not wish on anyone, a sentence of 19.8 years for a nonviolent crime.

While it's not a crime for people to lose money in the stock market, I feel for every person who did so under my management.  I am beyond grieved that individuals lost money under my watch.  My single focused goal is unyielding: to work relentlessly, as diligent as possible, to ensure that every single investor receives full recovery of their investment.  I know I will be able to achieve this goal, and would have already done so had I been in any other country but the United States.

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.  The United States is, for instance, the only advanced country that incarcerates people for property crimes, and the only country with conspiracy laws.  But it's the length of sentences that truly distinguishes American prison policy.  "Far from serving as a model for the world, contemporary America is viewed with horror," James Whitman, a specialist in comparative law at Yale, wrote last year in a study of America's Criminal Justice System.  Prison sentences here have become "vastly harsher than in any other country to which the United States would ordinarily be compared."

Bernard Kerik, former NYPD Commissioner and former Homeland Security Director nominee under the Bush Administration, was just released from three years in federal prison. The man who had spent most of his once-distinguished career putting people in prison had this to say about the Federal Prison System: "You have to be on the other side of the bars.  You have to see what it's like to be a victim of the system, so to speak.  There's no way to do that from the other side.  If the American people and members of Congress saw what I saw, there would be anger, there would be outrage, and there would be change, because nobody would stand for it.  Our prison system is not benefitting society."

The questions need to be asked: Why are so many men, nonviolent offenders, being warehoused in prisons, being held for decades on mistakes made that could be corrected if these men were freed after reasonable punishment?  Why does America pursue a measure of justice uncommon to any other nation?  Long incarceration for nonviolent offenders destroys families, injures children, confines most families to a vicious cycle of poverty.  Fathers and husbands locked away for draconian periods of time are irreplaceable in a child's life, in a family's life.

Flowing from the honorable act of the pursuit of justice, has come a great miscarriage of justice, inhumane in scope, unparalleled in size, unseen in any other industrialized nation on earth: Mass incarceration of our nation's citizens.

In closing, I kindly ask you to make your voice known.  Please visit the websites below and follow the instructions to be included in a letter campaign to Congress that address the issues of prison reform, of doing away with draconian sentences.  Please promote this in your social media circles and forward to friends and constituents.

www.prisology.org/action

www.petition2congress.com/11818/resurrect-parole-federal-prisoners/.