One of my favorite news discussion forums, is a PRI program out of KCRW in California. It is a one hour discussion run by moderator Warren Olney, who in my opinion, is arguable one of the best moderators on the radio today. If you like measured, non hyperbolic, low volume discussions from multiple partisan/non partisan perspectives on issues important to America, this is a good candidate for you. To the Point.
It is played on various NPR stations around the nation, and I listen on Seattle KUOW where it runs 5 days a week at 11:00a. It has been “must listen” news program for me going back into the early 90s. When in New Zealand, I download and listen on my MP3, as I work on the house oblivious (ignore) to my wife’s pleas for human conversation. I joke, although I am sure she would say I am speaking the truth here! LOL
Last Friday, I was driving from Bellingham to Seattle, and was listening to 94.9 Fm on the car radio, as I do, and Warren came on with this topic which really caught my attention.
Plea Bargaining, Even when you are innocent.
The subject was a compelling one, talking about a young black man who pleaded guilty to rape, when he was innocent. The discussion centered around why would you do that? It doesn’t sound reasonable, or rationale. Why do innocent people given in and accept the unacceptable? What are the factors that cause this phenomena? How prevalent is it?
Now, of course, we are talking about the Criminal system here, but it got me thinking about a parallel in the OVDI “in lieu of” penalty regime which is a plea bargain of sorts. I know attorneys will tear me up as engaging in an “analogy over reach” here. However, as we have seen, there are many benign minnows who were not willfully guilty of anything, and yet they still accept a penalty as if they were willful offenders. Why is that?
So, as I do these days, I find myself going to the web site to post some of my thoughts and questions. Sometimes I do it in just in deluded hope that it may awaken some awareness to the current offshore jihad that is disproportionately effecting so many minnows. Here is what I put up in the comments:
Thanks for the program yesterday. I listened to it with great interest while driving home, and now will download and listen again.
I think there is a corollary in the civil penalty system that doesn’t get discussed. It is about how innocent people accept civil penalties for some of the same reasons mentioned in this alleged rape case.
One thing that strikes me is how riddled with penalties (many of them severe) we have in the many Congressional Statutes that are constantly being added, or increased with little knowledge or understanding by the U.S. population as a whole.
Look up any statute coming out of Congress these days, like the Surface Transportation Bill, and do a find function for the term penalty. I think you might be surprised. Penalties are being added or increased daily, and you don’t know it is there until it hits you later in some unwitting situation where you find yourself non-compliant with this law or that.
In the criminal system, we all know that rape is against the law. People should be punished, but did you know that failure to file some obscure civil form might also have a dramatic impact on your life too, and open you up to a long, expensive civil process?
These new penalties, that get added and passed in statutes, often sit on the books for years. They are little enforced, and certainly not widely know about. Then, when policy emphasis shifts from one administration to another, they are re-discovered as a heavy handed compliance tool to force some long neglected matter.
Often these penalties are for non willful failures, which can be assessed by a government agency. This moves the burden of proof from the government to prove your guilt, to the alleged offender to prove they are not guilty of what they are charged. I.E., you are guilty until you prove your innocence.
The alleged offender is often left with poor choices in civil cases, like our plea bargain victim in today’s story in the criminal system. They feel forced to pay up or face even more draconian penalties should the government take you to court an assert criminal activity. Often the threat of court/criminal action is hollow, but the effect is the same. The victim ends up accepting guilt, when they are innocence. They just pay the penalty to get on with life rather than subject themselves to anxiety creating, expensive, and drawn criminal court process.
That is happening right now, in the Governments so called offshore “voluntary Disclosure” initiative, (OVDI) intended to bring egregious homeland tax cheats (Whales) into compliance and report their money held in secret offshore bank accounts. However, it is having the unintended consequence of sweeping up thousands of benignly non compliant immigrants and US expats into a net of severe penalties totally inappropriate for the assumed failures to file a long neglected 1970s administrative form called an Foreign Account Bank Report, (FBAR). (google it)
The impact of these pre judicial processes is, that the non willful penalties of $10K per account per year, can be Draconian enough, even without consideration of the possible impact of a willful charge by an all powerful government. Minnows, are appropriately frightened, and often pay up a BIG “in lieu of penalty” equal to significant percentage of all their ‘quote’ offshore assets even when they are innocent of willful failures to file the FBAR, and have reasonable cause for their non willful neglect. However, they still accept the guilt implied by their penalty payment just to get on with their life and avoid hyperbolic threats by the government of possible criminal prosecution.
The fear of what the IRS might do, if they were pursued into Federal District court is enough, that like the victim charged with rape, they essentially accept a plea bargain lesser charge. They pay up rather than face years of uncertainty and even the remote possibility of even worse penalties. In practical terms, the worst is NOT going to happen, but the fear factor extracts the quilt payment even when they are innocent.
I don’t know how you change this, or if there is even an answer, but we have definitely become “Form Nation” and “Penalty Nation”. There are foot faults every where now in our nation of laws which can have life alternating impacts, and it doesn’t have to be a rape charge!
And then, someone else on Isaac Brock posted a link that I had been saving to read, and finally did today. I am sorry I can not give credit to that person who found and posted it here. I can’t remember where it was, but you know who you are. This prompted me to post another comment on this discussion.
Here is another recent example of what I am talking about. This is not a judicial process, but it speaks to the innocent signing things that they are not guilty of.
Woman fights to assert citizenship
Though she was born in Weslaco in 1982, Brenda Vazquez swore to a Customs and Border Protection officer that she was born in Mexico and is not a U.S. citizen.
Desperate for the end of what she says was hours of intense questioning at a Brownsville international bridge, she signed a statement denying her citizenship.
What do these types of actions say about our legal processes that seem to so intimidate the innocent into accepting the unacceptable. This probably true the world over, and there are many worse injustices around. America may be no better or no worse than other 1st world countries. We will never eliminate the bullies within our legal systems, (like the IRS) but it does remind us that human nature such as it is, means the weak are vulnerable to such manipulation. We have to learn to push back, encourage others to be strong, or be turned into fish fertizler.
Final Note: I started this post a few days back, but didn’t finish. I procrastinate and get distracted easily! I see tonight, this story has become a national one on NBC nightly news, but not for the reasons discussed on “To the Point” . Guess what it is? http://www.msnbc.msn.com/id/3032619/#47729506
On top of the terrible situation you describe, add to it, that today’s legislation has recently added elements which are beyond the constituion ((and human belief):
-assuming that someone with over 2 million in assets is guilty (of expatriating for tax purposes in the Ex-patriot act)
-placing the burden of proof upon the individual to prove that he is not guilty (from president Obama’s own press release on the offshore haven bills)
-passing bills which are retroactive in both their judgements and penalties
I wonder what would happen if the people who have been bullied try to get the IRS on their side? The border guards are acting directly against the IRS wishes by ‘giving’ people ‘free’ access to renouncing their citizenship.
Conrad Black refused to plea bargain. He fought charges against him and all but for all but two of 14 charges that Patrick Fitzgerald leveled against him, the jury found him not guilty or the Supreme Court vacated. But for those last two charges he spent several months in prison. The defense cost him millions of dollars. No one today can afford to prove their innocence. The law doesn’t work that way. First, you have multiple charges against you. The prosecutor sees conviction of 2 out 14 as a victory, even though he loses 12 out of 14, you still go to jail and he wins. You have to pay millions, and the government doesn’t have to reimburse you if you win your case.
Just watched this fast talking but GREAT presentation about why you should never talk to the Police. Again with examples of how the innocent get trapped into guilty pleas. Hat tip to Jack Townsend for this…
thought I might add this video here…
Overcriminalization: Criminalizing the Everyday
*I saw this too and was thinking of making up a dedicated post.
I thought so too, but this post on “plea bargaining” never got much conversation, so just decided to group it here, for my own records.
You could also do an entire post about the whole regime of “non willful” penalties, and the proliferation of those types of penalties everywhere in Federal Legislation that moves the burden of proof from presumed innocence to guilty until you prove yourself innocent. We have become Penalty Nation, for sure.
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