Denny Hastert is Contemptible, But His Indictment Exemplifies America’s Over-Criminalization Pathology

(updated below) Bush-era House Speaker Denny Hastert, who was indicted yesterday, is a living, breathing embodiment of everything sleazy and wrong with U.S. politics. That is highlighted not only by his central role in enabling every War on Terror excess, but also by this fact: Hastert’s ability to make such large cash payments probably came from […]

(updated below)

Bush-era House Speaker Denny Hastert, who was indicted yesterday, is a living, breathing embodiment of everything sleazy and wrong with U.S. politics. That is highlighted not only by his central role in enabling every War on Terror excess, but also by this fact:

Hastert’s ability to make such large cash payments probably came from his career as a K Street lobbyist. He entered Congress in 1987 with a net worth of no more than $270,000 and then exited worth somewhere between $4 million and $17 million, according to congressional disclosure documents.

That common arc is more of an indictment of U.S. political culture than Hastert himself, but he’s certainly been happily and hungrily feeding at the trough. A political system that essentially ensures that every powerful political official becomes extremely rich is one that is inherently corrupt — as we’ve been taught for decades about those Bad Other Countries — and that is the most interesting and most important part of this story.

But Hastert was not indicted for any of that. Nor was he indicted for the alleged, unspecified “past misconduct” against an unnamed person to whom he agreed to pay $3.5 million to keep concealed.

Instead, Hastert was indicted for two alleged felonies: 1) withdrawing cash from his bank accounts in amounts and patterns designed to hide the payments; and 2) lying to the FBI about the purpose of those withdrawals once they detected them and then inquired with him. That’s it. For those venial acts, he faces five years in a federal prison on each count.

Hastert is about the least sympathetic figure one can imagine. Beyond his above-listed sins, he shepherded the 2001 enactment and 2005 renewal of the Patriot Act, whose banking provisions, in sweet irony, seemed to have played a key role in his detection and in creating the crime of which he stands accused. His long record in Congress involved, among many things, denying equal rights to people based on the “Family Values” tripe, as well as continually supporting ever-increasing penalties and always-diminished rights for criminal defendants. So he’s reaping what he sowed.

Moreover, because Hastert is rich, well-connected and white, he’s highly likely to receive extremely favorable treatment from the U.S. justice system, as David Petreaus among many others will be happy to explain to you. That two-tiered justice system — a super-lenient and forgiving one for the rich, white and powerful; a relentlessly oppressive one for everyone else — was the topic of my 2011 book, With Liberty and Justice for Some.

But there’s a reason the U.S. has become a sprawling, oppressive penal state, imprisoning more of its citizens than any other nation in the world, both in raw numbers and proportionally. There are actually many reasons: the profit motive from privatized prisons, the bipartisan nature of the “tough-on-crime” agenda, the evils of the Drug War, mandatory minimum sentences, the disproportionate use of arrest, prosecution and imprisonment against minorities.

But one key factor is over-criminalization: converting relatively trivial and harmless acts into major felonies. The postal worker who just engaged in an act of nonviolent political protest — flying a gyrocopter to the U.S. Capitol lawn to protest the corrupting role of money in U.S. politics — faces up to nine years in prison on multiple felony charges. That is over-criminalization, as are the shamefully large number of people in prison for selling prohibited narcotics to consenting adults who wanted them, or even for just possessing them.

Radley Balko, who has done among the best work on the broken U.S. criminal justice system, said this morning: “Dennis Hastert is one of the last people I want to be defending. But these charges are the picture of over-criminalization run amok.” Indeed, who is the victim in Hastert’s alleged crimes, which — again — do not include the “past misconduct”? He literally faces felony counts and years in prison for hiding an agreement to pay someone claiming to have been victimized by him, an agreement that is perfectly legal and standard (even common) when done with lawyers as part of an actual or threatened court case.

Over-criminalization breeds injustice and abuse of power. As the New York Times’s Adam Liptak reported in a great 2008 article on the uniquely oppressive U.S. penal state: “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.” Moreover, “Americans are locked up for crimes — from writing bad checks to using drugs — that would rarely produce prison sentences in other countries. And in particular they are kept incarcerated far longer than prisoners in other nations.”

Long-time appellate judge Alex Kozinski co-authored an essay entitled “You’re (Probably) a Federal Criminal,” noting how easy it is to become a felon. “Most Americans are criminals, and don’t know it, or suspect that they are but believe they’ll never get prosecuted … Violations are so common that any attempt to go after all criminals would sweep up millions of people.” The essay cited as examples misfiling tax returns even inadvertently, smoking marijuana, betting on a sporting event with a bookie, lying to a government bureaucrat — all acts that can be, and have been, prosecuted as federal felonies. In their book The Politics of Injustice, the criminologists Katherine Beckett and Theodore Sasson documented:

In 2000, police arrested more than 2 million individuals for such “consensual” or “victimless” crimes as curfew violations, prostitution, gambling, drug possession, vagrancy, and public drunkenness. Fewer than one in five of all arrests in that year involved people accused of the most serious “index” crimes [such as assault, larceny, rape or homicide].

When everything — even trivial transgressions — can become a serious felony, it empowers law enforcement to punish whomever they want. It’s a key reason they are able to basically use arrest and prosecution powers to control and punish minority populations in the U.S. The arrest and destruction of Eliot Spitzer for prostitution was accomplished through the same type of detection system and charges being used against Hastert.

Turning someone into a felon and putting them into prison for years, or even threatening to do so, is one of the most repressive things a government can do to its citizens. Only serious acts of wrongdoing should enable that. The “past misconduct” in which Hastert allegedly engaged may qualify, but that’s not part of his charges. The acts for which he has been charged — hiding withdrawals and lying to the FBI about why he wanted that money — do not qualify.

What we have here is a classic case of the warped American justice system. Hastert’s seriously bad and corrupt acts will remain unpunished. And the acts for which he is being punished, at least as laid out in the indictment, are not seriously bad and corrupt. One can harbor contempt for Hastert (as I do) while still recognizing the disturbing aspects of the U.S. justice system revealed by his indictment.


UPDATE: In the indictment, the DOJ made the decision not to expressly specify the “past misconduct” Hastert sought to conceal. Nonetheless, federal law enforcement officials apparently spent the day running around leaking to media outlets what the indictment worked hard to insinuate: that “Hastert paid a man to conceal sexual misconduct while the man was a student at the high school where Hastert taught.” So this seems to be a case where federal prosecutors wanted to punish someone for a crime they couldn’t prove he committed, so instead reached into their bottomless bag of offenses to turn him into a criminal for something else.

Obviously, “sexual misconduct” with a student is a serious offense, but that still is not part of what Hastert is charged with. In order to punish him for that crime, the government should charge him it, then prosecute him with due process and convict him in front of a jury of his peers. What over-criminalization does is allow the government to turn anyone it wants into a felon, and thus punish them without having to overcome those vital burdens. Regardless of one’s views of Hastert or his alleged misconduct here, it should take little effort to see why nobody should want that.

Photo: Jay L. Clendenin-Pool/Getty Images

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