Six myths about prison

Worst day behind bars: Kerik & Nacchio
Worst day behind bars: Kerik & Nacchio   

Joe Nacchio was the CEO of Qwest Communications International before being convicted of insider trading in 2007 and sentenced to 72 months in prison. Nacchio, featured in the upcoming CNBC documentary, "White Collar Convicts: Life on the Inside," maintains his innocence and says he was set up by the government. Despite the "Club Fed" reputation of white-collar prison, Nacchio describes it as "Lord of the Flies" for grown-ups. He says he figured out pretty quickly that this was a new universe and he had to adapt in order to survive. He can tell you the why tuna is currency, who his biggest problems were in prison (the white trash meth-dealer types), what you can smuggle into prison (anything, including drugs and Kentucky Fried Chicken), the right way to "catch a beating" and what a "lock in a sock" is (it's exactly what it sounds like and it will crack open your skull). Nacchio, now 65 years old, says the U.S. criminal-justice system is in urgent need of reform. Here, he offers six common myths about prison — and what the reality is.

Lady Justice, or Justitia, is America's symbol of justice. Her scales symbolize the power of reason and justice objectively applied without fear or favor, regardless of identity, money, power, or station in life. Sadly, she is just a myth. Our criminal-justice system is broken and urgently needs reform.

I am neither a lawyer nor an academic but I did experience a 14-year Kafkaesque journey through our federal criminal-justice system, a system that is expensive, brutal and where winning at all cost is the mantra of prosecutors.

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I was indicted and convicted under a new and never before used novel theory of insider trading, denied my ability to present a defense to a jury because of national-security issues, sentenced to 72 months in prison and ordered to pay $48 million of restitution and $19 million in fines.

I believe that a prerequisite to reforming our system entails exposing the myths for what they are.

Myth No. 1: Innocent people don’t go to prison.

I never took a plea deal nor did I elocute at sentencing because I believed that I was innocent of the charges brought against me. Due to "national-security issues," I was not allowed to tell a jury critical facts needed for my defense. As a result, I did not testify at my trial.

Judge Jed Rakoff, a New York federal district judge, estimated that between 1 percent and 8 percent of our prison population is probably innocent (false plea agreements) but succumbed to the coercive tactics of prosecutors.

Myth No. 2: We are one nation, under God, indivisible, with liberty and justice for all.

That is what we were taught in our public schools as we recited our "Pledge of Allegiance" daily. In fact, we actually live in 13 separate federal entities, or districts, each with their own Court of Appeals. Judicial decisions rendered in one district, even at its Court of Appeals, are not binding on judges in a different district. This allows the Department of Justice to "shop" for the most favorable federal district to bring their prosecution. My trial judge regularly disregarded case law in other federal districts with regards to critical evidentiary and procedural matters.

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Myth No. 3: The duty of a prosecutor is to seek justice, not merely convict.

So are the words from the American Bar Association's standards for prosecutors. If only this were true. Criminal justice today is a system driven by prosecutorial power, discretion and abuse. Why do prosecutors so flagrantly violate people's due process rights? The answer is simple: money and power. A good record at the Department of Justice guarantees the U.S. prosecutor with a senior position as a defense attorney in one of the nation's most prestigious firms or as general counsels of those same corporations whose revenues largely depend on the U.S. taxpayer. Immediately following my trial, all three senior prosecutors jumped over to the private law firms in Denver, Washington, DC, and Boston.

Joseph Nacchio, former chief executive officer of Qwest Communications, leaves the Alfred A. Arraj United States Courthouse in Denver,  April, 19, 2007.
Matthew Staver | Bloomberg | Getty Images
Joseph Nacchio, former chief executive officer of Qwest Communications, leaves the Alfred A. Arraj United States Courthouse in Denver, April, 19, 2007.

Myth No. 4: You will have your day in court to defend yourself.

This is a right granted in the Constitution, which, sadly, is the biggest myth of all. And the reason is simple: money. The cost to defend oneself is mindboggling. I spent a fortune over 8 years "exercising my constitutional right." Even for a simpler legal case than mine, the average family will bankrupt themselves if they attempt to go to trial. Prosecutors know this and abuse their authority in many ways forcing approximately 98 percent of all federal defendants (including thousands of innocent people) to accept a guilty plea bargain and never go to trial.

Myth No. 5: You will only be charged with ‘crimes you commit.’

A common abuse of prosecutors is overcharging. Most laws are so vague, prosecutors regularly exaggerate the criminal behavior knowing that it will bias the jury to convict on something. In addition, there is the benefit to them of running up the cost for the defendant forcing the defendant to plea bargain for economic reasons. Unfortunately there are so few consequences for prosecutorial misconduct that this element of our criminal justice system is out of control.

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Myth No. 6: Prison is a rehabilitative experience.

Justice is harder in America than any other developed country. Today there are 2.5 million Americans behind bars. America incarcerates people for a variety of social and economic ills. The brunt of this misdirected government policy is born by the poor, minorities, and the mentally ill. According to a 2006 Justice Department study, more than half of the male prisoners and almost 75 percent of the female prisoners in the United States suffer from psychiatric disorders. And, rehabilitation is virtually non-existent. Of the over 700,000 released from prison annually two-thirds will be rearrested and more than half will return to prison within three years.

Commentary by Joseph P. Nacchio, former chairman and CEO of Qwest Communications International and former chairman of the National Security Telecommunications Advisory Committee.

"White Collar Convicts: Life on the Inside" will be on CNBC on Wednesday, April 29 at 10pm ET/PT.