Jail Without Bail
Jail Without Bail
How Long is Too Long?
By Laura Whitehorn
While political prisoners constitute only a small percentage of those held in preventive detention, it is striking that the U.S. Attorney 's office asks for (and usually gets) preventive detention in almost all cases involving radical political activists. Preventive detention is a bad law that has been easily molded to politically repressive ends. Preventive detention, gag orders, militarized courtrooms, anonymous juries, disproportionate sentences, and arbitrary denial of parole are routinely applied in cases involving leftist political defendants. When we see these things occurring in other countries, many of us correctly denounce them as police state tactics and a danger to everyone's rights. When we see them used here too, many of us are willing to be lulled by FBI statements about 'terrorism.'
Editor' 's note: The following article makes reference to the May 26, 1987 Supreme Court decision, U.S. v. Anthony Salerno and Vincent Cafaro, in which provisions of the 1984 Bail Reform Act allowing pretrial detention without bail on the ground of dangerousness were held neither to violate due process un-der the Fifth or Eighth Amendments, nor to violate the Eighth Amendment guarantee against excessive bail.
Justice Rehnquist: "In our society liberty is the norm and detention without trial is the carefully limited exception..." - 1987 Salerno opinion
Justice Rehnquist's words describe an ideal that many of us would like to believe is an integral part of the U.S. system of laws. Ironically, it was the 1987 Supreme Court decision from which that quote is taken that upheld the constitutionality of preventive detention and thereby guaranteed that the gap between the ideal and the reality of the criminal justice system would widen.
His words have given me little comfort during the past five years I've spent in jail. Only 12 months of that time was the result of a conviction; the rest of the time I've been held in preventive detention awaiting trial.
Being a "carefully limited exception" hasn't made it easier to be awakened at 4:30 am every morning by clanging metal gates, sometimes accompanied by a hostile guard yelling, "Hurry up; no talking. You're not at McDonald's; you're in jail!"
I know I'm in jail. I've known it since May 1985 when I was arrested in a Baltimore apartment by the FBI. They were searching for a group of revolutionaries who had been fugitives living clandestinely for a number of years. Although I was not a fugitive and had no outstanding charges, I was immediately placed under arrest.
My initial charge was assault on an FBI agent - a charge so blatantly false that even the magistrate who arraigned me questioned whether it had really happened. That didn't stop the U.S. attomey from asking that I be held in preventive detention, and it didn't deter the magistrate from granting her request. In theory, the government has the burden of showing that bail should be denied. In (see JAIL, page 6)
JAIL WITHOUT BAIL (from page one)
practice, magistrates and judges usuaily grant such requests in routine fashion - and defendants have the new burden of proving why they should be granted bail. Over the next few months, the prosecutor added charges of possession of two guns and false identification found in the apartment in which I'd been arrested. As the new charges were added, preventive detention was reaffirmed in my case.
One of the limitations on preventive detention under the 1984 Bail Reform Act (the act that approved the use of preventive detention in federal cases) is that the prosecutor can request preventive detention only if there is a crime of violence involved. In my case, the unproven and contrived assault charge served as the required violent act.
Once having gotten past that threshold requirement, the prosecutor was obligated to prove to the judge's satisfaction that I was either a "threat to the community" or that I could not be prevented from fleeing by "any condition or set of conditions."
To establish my "dangerousness," the U.S. Attorney cited my record of three prior arrests. It was true. I had been arrested before. Since the 1960s and my initial involvement as a college student with the civil rights and anti-Vietnam War movements, I've been active in a broad range of human rights and social justice issues. I've picketed, protested, demonstrated, and defended myself and others when we've been attacked by the pólice. In 1969, I was arrested three times in anti-war demonstrations. None of the arrests was serious enough to result in a prison sentence.
I was released on bail in each case and appeared for all court dates. I violated none of the conditions of release. There was never any issue of intimidating witnesses. I successfully completed two years of unsupervised probation. Based on that history, the judge decided I should be held in preventive detention. The fact that my father was willing to offer his home for bail and to supervise my release did not seem to matter.
At a later hearing where I was again denied bail, the judge articulated his own carefully sculpted exception to the right to bail: I should be denied bail, he said, because I had stated in court that "I live by revolutionary and human principies."
It seems clear to me that when you make exceptions - no matter how "carefully limited" - to a fundamental right, the exceptions end up destroying the right and replacing it with a privilege.
Fundamental Right or Arbitrary Privilege?
As the months and years have gone by, that initial decision to hold me without bail has been upheld by the Fourth Circuit Court of Appeals on two occasions.
In May 1988, three years after my arrest in Baltimore, I was indicted along with fíve other political activists here in Washington, D.C. on charges of conspiring "to influence, change, and protest policies and practices of the United States govemment in various international and domestic matters through violent and illegal means." The policies and practices we are accused of protesting include the contra war against Nicaragua and the 1983 invasion of Grenada. The violent and illegal means we are accused of employing here are four bombings of govemment and military buildings, including the bombing of the Capitol following the attack on Grenada. No one was hurt in any of those bombings.
The six of us had been arrested at various times in 1984-85, and my five co-defendants are now serving outrageously long sentences on charges that in any other case would have resulted in significantly less time. However, it seems that "carefully limited exceptions" to normal sentencing procedures, as well as those to bail, have been carved out for political prisoners: Alan Berkman is serving 12 years; Tim Blunk, 58 years; Marilyn Buck, 70 years; Linda Evans, 35 years; and Susan Rosenberg, 58 years.
Since the bombing conspiracy charge was a new charge, I had a new bail hearing here in D.C., even though I was still being held in preventative detention in Baltimore. Here, too, I was held in preventive detention. The long-standing charges from Baltimore were held in abeyance by the Justice Department, which is presumably waiting to see the outcome of the D.C. trial.
In April 1989 the D.C. trial judge dismissed the charges against three of my co-defendants, and the govemment appealed. Knowing that the appeal could take up to a year to be resolved, I again requested bail. This time the judge ruled that detention that extends more than a year violales due process and ordered my release on the same bail conditions that the Baltimore courts had rejected.
At the same time the Baltimore courts rejected those conditions again, continuing the preventive detention there that stretches back to May 1985 for me.
I remain in jail serving an inordinately long sentence, having been neither tried nor convicted. Ironically, I've now served more time in preventive detention than I could have received as the maximum sentence on the assault charge. That charge carnes a maximum penalty of three years. I am now celebrating my fifth year in jail.
I've been detained far longer than KKK leader Don Black was imprisoned after he was convicted for stockpiling massive quantities of automatic weapons and explosives as part of an attempt to invade the Caribbean nation of Dominica and overthrow its govemment. He served 24 months. I've been locked up longer than Michael Donald Bray was incarcerated for his conviction for bombing ten abortion clinics. Bray served 46 months in prison.
I expect it will be at least six more months before I have the opportunity to confront the charges against me.
Justice Marshall: "Unless the right to bail before trial is preserved, the presumption of innocence, secured only after centuries of struggle, would lose its meaning." -1987 Salerno dissent
Justice Marshall, in an impassioned dissent in the Salerno case, warned that the erosion of one of the hard-won rights of the individual faced with criminal charges would necessarily weaken the other rights. His prediction has proven correct.
With the development of preventive detention, the presumption of guilt has replaced the presumption of innocence. Now, instead of having guilt or innocence decided by a jury of one' s peers, the detainee has that determination made by a judge. It is based on information presented by the prosecutor, and it is the defendant's burden to rebut the accusations. The initial determination to refuse bail is made within three days of the arrest - a time when the defendant is lucky to have been able to find a lawyer, let alone had time to discuss and prepare for the bail hearing with that lawyer.
I can speak directly from my experience in Baltimore City Jail and the D.C. Detention Center. Facilities that were always inadequate are now totally overwhelmed. Picking an attomey becomes an almost impossible task. Most pretrial facilities only permit detainees to make collect phone calis, and most lawyers don't accept them - certainly not from people who aren't already clients. There are, theoretically, provisions for making individual, supervised, direct legal calis, but the demand is so great - so much greater than the facilities provided - that many times correctional officers throw up their hands and refuse everyone rather than be forced to pick among angry and desperate prisoners.
Judge Rehnquist, in the Salerno decision, tried to distinguish preventive detention from imprisonment without trial by stating that pretrial detainees are held under better conditions than sentenced prisoners . This, he asserted, makes pretrial detention "regulatory " rather than "punitive." This judicial sleight-of-hand might befunny if it wasn't so painfully false.
Like everyone else in the D.C. jail, I am locked in a tiny cell at least 14 hours a day, and often for much longer. Almost all cells are double-bunked, although they were constructed to house only one adult. There's no fresh air and no real window. The din of too many people in too small a place is maddening, and the noise, coupled with a schedule that includes breakfast at 4:30 am, makes sleep near impossible. I ask myself how anyone is supposed to be able to stand the stress of trial and be awake and alert enough to help in her own defense - especially when the trial stretches on for several months. The conditions make privacy or a quiet time to think or feel an impossibility. Several times a month our cells are tumed upside-down, papers strewn about, underwear dumped out on the floor in a "shake-down" search for prison "contraband." Visits are limited to two hours a week and take place over phones and through a thick glass wall. Outside recreation - the only time we can breathe fresh air or see a little bit of the sky - is scheduled for three hours a week but is often limited to one or two.
After a few months of these conditions, many pretrial detainees would rather cop a plea than fight their case, just to get out of the jail and go to a sentenced prison where they can have a more nearly-sane existence.
The Supreme Court has it all backwards; rather than the better conditions in pretrial facilities making preventive detention less punitive, preventive detention has contributed to massive overcrowding and made pretrial facilities more punitive.
Justice Marshall: "Such statutes consistent with the usages of tyranny and what bitter experience teaches us to call the police state, have long been thought incompatible with the fundamental human rights protected by the Constitution." - Salerno dissent
One of the hallmarks of a police state is the conscious manipulation of the legal system to ensure social and political control. Which acts get labeled as crimes and how seriously they're dealt with are a function of the political agenda of those in power. For example, I'm in prison charged with trying to stop the illegal and immoral contra war; Oliver North is getting rich while doing his little bit of "community service." Increasingly, it's not what you did, but who you are that determines your legal status. So it should come as no surprise that preventive detention has been disproportionately applied to the poor, to the oppressed, and to political opponents of the government.
While political prisoners constitute only a small percentage of those held in preventive detention, it is striking that the U.S. Attorney's office asks for (and usually gets) preventive detention in almost all cases involving radical political activists. Preventive detention is a bad law that has been easily molded to politically repressive ends. Preventive detention, gag orders, militarized courtrooms, anonymous juries, disproportionate sentences, and arbitrary denial of parole are routinely applied in cases involving leftist political defendants. When we see these things occurring in other countries, many of us correctly denounce them as police state tactics and a danger to everyone's rights. When we see them used here too, many of us are willing to be lulled by FBI statements about "terrorism."
The U.S. "war on terrorism" has and continues to cover for a political agenda of overseas aggression and domestic repression. The "war on international terrorism" was used to justify the invasion of Grenada, the contra war, and the continued support for the death squad regime in El Salvador. The "war on domestic terrorism" has justified the resurgence of the FBI's role as a political police force and the passage of repressive legislation such as the Bail Reform Act. Now, Bush's "war on narco-terrorism" will not only be used, to justify
(see JAIL, page 11)
JAIL (from page 6)
direct U.S. military involvement in Latín America but also the militarization of our domestic society. Given the realities of racism and poverty, it is the African-American and Latino communitíes that will be patrolled by the National Guard and have helicopters overhead. We have already seen indiscriminate sweeps of the streets in Los Angeles hailed as an important weapon in the war on drugs. In Chicago and Washington D.C., residents of public housing projects have to carry official identification to get into their own homes. In South Africa, those are called pass laws.
There are no easy answers to the problems the U.S. faces. But, having now spent five years in prison as one of the Supreme Courts "carefully limited exceptions," I know that the problems can't be "locked up." That path leads only to the police state Justice Marshall envisioned
Laura Whltehorn #220-S58, 1901 D St. SE, Washington, D.C., 20003