Senator Craig's Innocence

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In a way, we should all be appreciative of Senator Larry Craig's post-conviction claim of innocence. At long last we have a member of the United States Senate who has acknowledged the phenomenon of the false guilty plea, if not the pervasiveness of wrongful conviction itself. Or better yet, by insisting he did “nothing wrong” despite violating a statute, Craig may have finally expressed doubt in the laws that lawmakers have rained down on us. Viewed in their worst light, the allegations made against Craig hardly seem to rise to the level of criminal conduct. Yet Craig's guilty plea to disorderly conduct charges will prevent him from formally appealing the conviction and will likely haunt him for the rest of his life.

Senator Craig's proclamations of innocence are ironic given his membership in one of the earth's most punitive deliberative bodies. During Senator Craig's tenure in Washington, Congress has: (1) criminalized hundreds of previously non-criminal acts under federal law; (2) increased criminal penalties for many federal offenses; (3) drastically increased collateral consequences of minor criminal convictions, subjecting some convicted misdemeanants to lifetime infringements of civil rights and occupational opportunities; (4) applied these collateral consequences retroactively; (5) strategically and systematically limited the appeal rights of convicted persons; (6) carved away the ancient availability of habeas corpus review of convictions; (7) created “procedures” to circumvent the plain language of the Sixth Amendment for accused terror suspects; (8) expanded the authority of police to evade the Fourth Amendment by wiretapping, searching without notification, searching without warrant, and surveilling citizens without cause; (9) exponentially enlarged the budget of the U.S. Justice Department; (10) diverted federal tax dollars into local law enforcement agencies to pay for extra officers; and (11) eliminated all statutory relief for convicted persons.

Our nation now overflows with police officers who have been immunized from most civil liability for their misconduct and made largely unaccountable for their errors on the job. A good measurement of how overpoliced we have become is the “search warrant success rate” — the rate of search warrants that lead to charges of any kind. Historically, investigators rarely sought search warrants unless their actions were based on — can you believe it — probable cause. Today, fewer than half of warrants in some jurisdictions result in any prosecutions.1 (And, remember that court holdings have drastically reduced the numbers of searches that require warrants at all).

During Senator Craig's 27-year tenure in Congress, Craig helped impose a spirit of meanness upon an immense state and federal law enforcement apparatus. It was this money- and power-gorged law enforcement machinery that sat next to him in the restroom stall at the Minneapolis airport. The spectacle of a government agent loitering on a toilet seat at taxpayer expense in a “sting operation” against those who give inappropriate foot taps or hand gestures can only be explained as part of the general Sovietization of criminal justice that Senator Craig and his cohorts in Congress have been promoting for more than a generation.

My own experience is that as many as half of all guilty pleas are rendered under circumstances like the Senator's. A defendant is either incarcerated and wants to be released, or otherwise seeks to resolve an uncomfortable or embarrassing matter as cheaply, quickly, and conveniently as possible (or without anyone noticing). Fighting a misdemeanor or a traffic ticket almost always exacts more money, time and resources than it is worth. Virtually every person in jail facing misdemeanor charges knows that by pleading guilty, he will probably be quickly released. Hundreds of thousands of false guilty pleas are registered annually in the United States.

In many ways, America is approaching the level of punitiveness established by the former Soviet Union: a pervasiveness of entrapment, coerced confessions, false guilty pleas, rewarded government testimony, and government-favoring rules of evidence has created an army of the convicted that constitutes a sizeable proportion of the nation's population. In fact, this nation of the convicted is now larger than the combined populations of several states. America's often-lauded court protections are often illusory in practice. The United States leads the world in both raw numbers and rates of incarceration. In fact, the U.S. now has a higher incarceration rate than any previous society in world history.

Thanks to the U.S. Senate and its allies in the House and the executive and judicial branches, federal judges now regularly order juries to convict defendants regardless of whether jurors approve of a law or an application of the law. Federal sentencing guidelines expressly reward defendants who plead guilty (whether they are or not) or otherwise assist the government in convicting themselves or others. A list of cases where an innocent or less culpable defendant received a harsher sentence after taking charges to trial than his more culpable codefendants who pled guilty would fill volumes.

Craig's Senate has ensured that no statutory process is available for convicted persons to obtain any type of expungement, sealing of records, or other relief from the mountain of career, occupational, and civil disabilities heaped upon them by Congress. Unlike almost every state jurisdiction, the federal jurisdiction allows no one any avenue for ameliorating their criminal records other than a pardon by the executive (which is rarely granted).

The Senator's predicament also illustrates the decreasing anonymity that has accompanied the computer age. No longer can someone escape the onus of a criminal conviction in a far-flung jurisdiction; the electronic data simply flows too easily. In fact, Larry Craig's Senate and its partners in government have changed the rules so that local criminal records are now digitized, uploaded and transferred into federal databases. As a member of the National Rifle Association's board of directors, Senator Craig led the push for a national “instant check” system whereby federal funds now go toward uploading ancient local convictions so that larger numbers of Americans are disallowed for life from possessing firearms under the Brady Act.

Whether Senator Craig ever recovers from his recent misadventures in the bathrooms and courtrooms of Minnesota is subject to question. There is no question, however, that his own actions as a U.S. Senator not only contributed to his criminal charges but will likely make his ultimate recovery more difficult. Given the fact that Senator Craig has repeatedly won elections by promising to visit terrible harms upon the backs of accused persons and ex-convicts, it is refreshing to hear him acknowledge that he is now among the ranks of those victimized by the prison-industrial complex he has empowered.

  1. See Donna Coker, “Addressing the real world of racial injustice in the criminal justice system,” Journal of Criminal Law and Criminology, June 22, 2003.

Dr. Roger Roots, J.D., Ph.D. [send him mail], is an attorney, sociologist, and writer living in Montana.

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