A criminal justice system well designed for the well-heeled

It should not be a surprise to anyone, but the criminal justice system, like so much else in our society, is designed to benefit the wealthy and privileged… not only by the way in which laws are put on the books, but by the way they are carried out. In short, criminals belonging to society’s upper crust, are mainly saddled with a fine. Real serious crimes by the aristocrats might also include probation (unsupervised, naturally) and possibly community service (arbitrary and vague). Now for the rest of the people, which is mostly comprised of those living in poverty and those on the verge of living in poverty, if they commit a crime you can bet he/she will serve time behind bars. And, of course the penalty for crimes committed by the poor, disenfranchised, and people of color is disproportionately more severe than it is for crimes committed by those in high places.

Wealthy people in positions of prominence, for example, are often not even charged when they go afoul of the law, much less prosecuted. Look no further than what happened when North Carolina senator R. C. Soles shot an unarmed man who was walking away from him and posed no immediate threat. The police report, if one was taken, was never released. Mr. Soles was not arrested. He was not charged. The whole incident was swept under the carpet and the media was muzzled. For the average citizen who carried out such action, you better believe that he/she would be charged with “assault with a deadly weapon with intent to kill inflicting serious injury” at the minimum. Factors such as Class and Color of the victim would determine the amount of bail, and the way in which the prosecution moved forward.

Although Mr. Soles acted criminally and exhibited extremely poor judgment in the shooting incident, the North Carolina State Bar refused to act on a complaint filed against Mr. Soles. Again, not surprising since the Bar is an unregulated agency that is drunk with power… so much that it disbarred former Durham District Attorney Mike Nifong on baseless trumped up “ethics” charges; charges which were initiated by some anonymous person in the Bar for the sole purpose of removing Mr. Nifong from the Duke Lacrosse case.

But businessmen are revered in our capitalistic society, and great pains are taken to look the other way when they commit crimes. Although most of the mainstream media has ignored the crimes of Somerhill Gallery President Joe Rowand, the weekly entertainment tabloid, The Independent Weekly, did expose his criminal activities. In short, Rowand defrauded artists out of at least $270,000 worth of commissions for artwork on consignment at the Durham gallery. And, according to a Chapter 7 bankruptcy filing, he owed $200,000 in unpaid rent, and owed hundreds of thousands of dollars to other creditors. He managed to amass this debt for the business while paying himself a salary of $15,000 per month (roughly $180,000 annually). Now Mr. Rowand is not even charged with a crime. Why? Because he is a businessman.

Heather Holley was not a businesswoman. So when she went on her identity theft spree, during which she tried to obtain some health insurance, and spent $1,800 at Best Buy, police and prosecutors and the courts were ready to throw the book at her. After her arrest, bail was set at $5 million. What made Ms. Holley’s crime so unforgivable was that she victimized a wealthy respectable lady. Had she targeted riff-raff in her crimes, she might have been released without bond, especially considering it was her first run-in with the law. When Ms. Holley had the audacity to ask the judge about her bail being excessive considering the charges against her, he retaliated by raising it an additional million. Of course, there was no outrage at her treatment in court by the media. No editorials in newspapers… in other words, this selective and unjust treatment is as acceptable to the media as the unjust disbarment and persecution of Mike Nifong. The media is well aware of which side its bread is buttered on, and who’s doing the buttering. To champion "equal justice for all" would undoubtedly garner consternation amongst the bigwigs who help support the media by paying for advertising and other contributions.

Recently Rusty Carter, a businessman and owner of Atlantic Corporation, was fined $100,000 by the State Board of Elections because he illegally funneled money to the campaigns of Governor Bev Perdue and two state senators. His company gave $266,900 to state and federal candidates during the 2008 election cycle, according to a sworn affidavit. According to The News & Observer the three recipients of the businessman’s largess “agreed to forfeit the donations.” What does that mean? Are they going to return it to Atlantic? Give the money to charity? And, who’s going to see that these politicians follow up on their promises? Is there going to be a public accounting? (I doubt it.)

Bob Hall, executive director of Democracy North Carolina asked the State Board of Elections to hand out a $200,000 fine to Carter, suggesting that a hefty fine “sends a signal that these kids of violations deserve to be punished.” Sure, these types of violations deserve punishment, but because he is a businessman, jail time is out of the question… not even a consideration. Regarding the amount of the fine, the Board, under Chairman Larry Leake couldn’t bear to issue a fine greater than $100,000. Hall considers the fine imposed, although half of what he sought, to be “some serious money.” Who does he think he is fooling? $100 grand is serious money to common folk (or “little people”), but to the owner and CEO of a large corporation, that amount probably is barely enough to cover his monthly bar tab. But the media, Mr. Hall, and the courts want the people to believe that Mr. Carter has been severely wounded fiscally. That amount is nothing more than pocket change to a businessman of Mr. Carter’s means.

The General Assembly, which is basically a reactionary body, responded to the Carter case by passing a law making it a felony if a donor gives more than $10,000 in illegal campaign donations, not a misdemeanor like Mr. Carter faced. From what I read from the newly passed law, a donor can make illegal donations up to the $10,000 limit and still be considered to have committed a misdemeanor crime. Why the big cushion? Keep in mind that laws are made by the wealthy and privileged, and they are going to have a definite slant towards benefiting the upper echelon.

Not long ago, I was nearly arrested on the Duke campus because I am a supporter of Mike Nifong. Duke, of course, denied this, with Michael Schoenfeld, a vice president, accusing me of repeatedly violating the school’s regulation against solicitation. What is their definition of solicitation? According to Mr. Schoenfeld it is passing out business cards (I passed out about a half dozen to people with whom I had had a conversation) and asking someone to visit your website. That is unbelievable, but it was the only excuse the university could come up with for kicking me off of its campus when I went to attend an event which was advertised as open to the public. Even if it was the reason behind my near-arrest… to arrest me for passing out business cards? This unjust and malicious behavior against me on Duke’s part is acceptable to the media, and subsequently, the masses because I do not matter when the issue is scrutinized through the lens of the state’s tenet of “selective justice based on Class and Color.” Laws, and the way they are applied are adjustable to the individuals involved, their standing in society, and the color of their skin.

With the media helping to direct public opinion, it will always be acceptable to the mindless masses for the well-heeled to pay for their crimes with their wallets, while the disenfranchised, poor, people of color, and the majority of common folk will be expected to pay for their crimes by languishing behind bars at taxpayer expense (and at the benefit of corporations in the correctional institution business).

Heather Holley - an appropriate and just resolution of her case

39 year-old Raleigh woman Heather Holley was recently booked in jail and saddled with 29 misdemeanor and felony charges with offenses including burglary, breaking into three homes, identity theft, and stealing mail, checks, passports, and other identifying information. She is also alleged to have went on a $1,800 shopping spree using a stolen credit card, and attempting to cash a $34,000 business check. One victim stated that Ms. Holley caused her added distress with postings on Craigslist that resulted in unwanted phone calls and knocks on her door. According to media reports she also tried to use the identity of two children to obtain health insurance benefits. These crimes had been carried out over a series of months, ending with her recent arrest.

Ms. Holley's initial bail was set at a whopping $5 million. At her first court appearance several days following her arrest, Ms. Holley told the judge that her bond was outside the legal guidelines for the charges with which she faced. So, the judge promptly raised her bail another $1 million to a total of $6 million. As referenced in a prior recent blog about Ms. Holley, a man charged with first degree murder had bail set at $1 million, one-fifth of Holley's original bail. However, to really illustrate the illogical disparity in the amount of bail being set in North Carolina, compare Holley's case to that of another North Carolina resident, Kristen Snipes.

Kristen Snipes, a 26 year-old Morrisville, NC woman, was recently charged with drunken-driving and having unsealed alcohol in the passenger area of her car. As a result, she had her driver's license revoked and was released to await trial for the DUI related offenses. However, the day following the revocation of her license, she was driving and struck a man on a bicycle from behind. Witnesses of the accident saw her flee the scene in her vehicle. The man was hospitalized for treatment of his injuries. The following day Ms. Snipes was apprehended outside the state of North Carolina... in South Carolina. She was returned to North Carolina where her charges now include DUI, driving with an open container of acohol, felony hit-and-run, and driving with a revoked license. Add to this, that she was arrested outside of the state of North Carolina. Her bail was set at only $26,000.

This is just one of many examples of North Carolina's system of selective justice based on Class and Color. There is no doubt that someone charged with murder should be given a higher bail than a non-violent thief. Also, someone who causes bodily injury while driving a vehicle on a revoked license should have a bail that is set much higher than a petty thief.

I refer to Holley as a small time thief because the financial amounts of her alleged crimes (from what was reported in the media) was less than a couple of thousand dollars. Compare this with the embezzlement of $5,000 by a 21 year-old employee from a Taco Bell franchise... his bail was $20,000. Another comparison is that of a former Durham County sheriff's lieutenant charged with 25 counts of embezzling nearly $100,000 from 2003 until 2009, embezzling drug evidence, felony obstruction, and felony possession of cocaine... his bail was set at a paltry $50,000 (one one-hundredth of that of Holley's initial bail). What makes crimes of the lieutenant more egregious than Ms. Holley's is that the sheriff's officer was in a position of public trust when he committed violations of the law.

Then consider the case of Durham's Somerhill Gallery president Joe Rowand. He fleeced consignment artists out of compensation they were due by pocketing the proceeds from the sale of their artwork and misleading artists into believing that their works had not yet sold. Artists are owed $270,000 on commissions from works sold as far back as 2002. Furthermore, while running the business into the ground, Rowand paid himself a monthly salary of $15,000 and his company owes more than $200,000 to its landlord, Scientific Properties. To protect himself, he has filed for Chapter 11 personal bankruptcy protection, making it extremely unlikely that the artists who were defrauded out of their commissions will ever be compensated. What, you may ask, is the bail for this man who is a combination of a small-time version of Bernie Madoff and CEO of AIG? Well, there is no bail (none, nada, zilch) because what he has done in ripping off hardworking artists for years is not considered a crime. In our capitalistic society it is called "doing business." In other words, a businessman can legally cheat people out of thousands of dollars and not even be charged with a crime. Are Joe Rowand's actions more despicable and criminal than Heather Holley's? Undoubtedly, yes. Just keep in mind that North Carolina is a state which follows the tenet of "selective justice based on Class and Color."

I do not believe that reasonable people possessing common sense would argue that the bail amount set for Heather Holley is absurd. It may even be possible, as Ms. Holley stated, that it is beyond the bounds of guidelines set for the charges against her. I am unfamiliar with specific law here, but my gut feeling is that she is correct on this point... in which case, the judge probably raised her bail from $5 million to $6 million out of pure spite.

The important issue to face is what direction to take now. Instead of continuing on this downward spiral, I would suggest that the justice system step back and consider taking the following avenue... one of Restorative Justice. Restorative Justice is a concept that is taught and widely promoted at Raleigh's Campbell University School of Law under Jon Powell. It consists of the following steps: 1) for the offender to admit responsibility for his/her actions; 2) for the offender to apologize to the victim; 3) for the offender to compensate the victim for his/her losses; and 4) for steps to be taken to prevent the re-occurence of the offense by the offender. In Ms. Holley's case, the scenario would play out as follows, under the supervision of a mediator: 1) Ms. Holley would meet with each of her victims (if they are agreeable, of course). She would admit her role in the offenses against the victims and offer her apologies. 2) She would re-pay the victims for financial losses, including interests for payments made over time. 3) To assure that Holley does not repeat her offenses, she would be placed under probation, she would undergo psychological evaluation (to rule out a mental cause for her sudden past criminal acts), and other non-malicious programs would possibly be instituted to monitor her. I have no objection to reasonable community service as a condition.

By following these principles of Restorative Justice the following benefits can be realized: 1) affording the victim of the most positive closure to a criminal event; 2) possibly salvaging the life of the offender; 3) freeing up space in correctional facilities for those requiring incarceration; and 4) saving hard-earned taxpayer dollars.

Proceeding down the current road, in which, if convicted on all charges could land Ms. Holley in prison for more than six decades, is detrimental for all involved and for society in general. For many traumatized victims, it is cathartic and healing to receive a sincere apology from the heart of the perpetrator of the crime. Even communicating and getting to know one another's circumstances and background can foster empathy. This has been supported by certain cases in which family members of murder victims communicated with the murderer and surprisingly even forgiven them for taking the life of their loved ones in certain instances. Heather Holley, who claims to have not been in trouble with the law prior to the current string of crimes, would spend a significant number of productive years locked behind bars, which would not offer much in the promise of rehabilitation. It would be yet another life, unnecessarily wasted in a warehousing mentality of the North Carolina justice system. Furthermore, in a country which leads the world in the percentage of its population incarcerated, it would free up prison space for those convicted of truly heinous and violent crimes. There would be less over-crowding in the correctional facilities, which would lead to less stress, fewer confrontations and fights among the prison population, and better control of inmates and compliance to rules. Finally, the cost to the taxpayer of seriously prosecuting and keeping Ms. Holley in prison amounts to more than the cost of sending her to get a college education. Housing people in prison is an extremely expensive proposition that politicians don't want to discuss or acknowledge for fear of the appearance of being "soft on crime." But the truth is that the state's budget crisis would not be as dire if those who did not deserve to be incarcerated were released and either monitored and/or placed on probation. Placing Ms. Holley in jail for years is taking money out of North Carolinians' wallets and decreasing funds available for social programs needed for the poor, ill, and disabled.

Now I'm not suggesting that Ms. Holley should go scott-free for the crimes which she committed, but I do not believe that she should be held under unreasonably high bail, and that she should be sentenced to an exceptionally lengthy sentence if convicted. Mitigating factors should be considered in her case, and not the desire for carrying out a vendetta against Holley because of the victims' standings. If warranted by evidence, prosecution should offer a fair and just plea deal before proceeding with a costly prosecution. Taking a fair, logical and humanitarian approach regarding the treatment of Ms. Holley would be in the best interests of society, and all involved. The only ones to suffer by taking this uplifting path would be the CEOs and fat-cats of corporations invested in building, operating, and maintaining the state's correctional facilities.