a public defender

Where We Live, NPR’s local daily radio show dedicated the entirety of today’s episode to the issue of children with incarcerated parents.

Here’s a 2007 Sentencing Project report on children with incarcerated parents. These are the highlights:

• In 2007, 1.7 million minor children had a parent in prison, an 82% increase since 1991.
• One in 43 American children has a parent in prison, with particularly broad racial/ethnic variation.
• One in 15 black children and 1 in 42 Latino children has a parent in prison, compared to 1 in 111 white children.
• In 2007, there were 809,800 parents incarcerated in U.S. state and federal prisons, an increase of 79% since 1991.
• In 2007, half (52%) of all incarcerated men and women were parents.
• In 2004, 59% of parents in a state correctional facility and 45% of parents in a federal correctional facility reported never having had a personal visit from their child(ren).
• Two-thirds of the incarcerated parent population is non-white.
• From 1991 to 2007, the number of incarcerated mothers increased by 122%, compared to a rise of 76% for incarcerated fathers.

If you want to get involved by mentoring kids with parents in jail, read some details here.

It’s a different world today than it was in the ’80s, ’90s and even the early whats. The economy may or may not be recovering, but one thing is for sure: budget deficits are spiraling out of control. Crime may be down, but the workload of the criminal justice system is up. In particular, the burden on public defender systems is one that has rarely been seen before.

Whether this is a product of reduced funding, of lengthy sentences coming home to roost, of a zero-tolerance “tough on crime” policy enacted years ago or of the sheer overcriminalization of our society is an open question (my guess: a mix of them all). When a small state like CT has 1663 crimes defined in its statutes (and that’s in 2006; several more have been added since) and when books are written warning us that we commit three felonies a day, it’s time for someone to sit up and take notice. And by someone I mean those with the power to change the direction we’ve gone in: legislators and voters. So you, all of you.

The repercussions of too many people in the justice system are beginning to reverberate throughout the country: Georgia is on its 4th lawsuit to force indigent defense spending; Michigan is being sued by three defendants who claim that the lack of funding forced their public defenders to pressure them into entering pleas of guilty; the Missouri Supreme Court recently allowed public defenders the nuclear option of shutting down their doors and refusing cases if caseloads got unmanageable; the costs in Ohio are rising quick; the Fresno public defender’s office got permission to lay off 6 attorneys before the end of the year to balance their budget; and contract attorneys in Nebraska have been receiving a $100 flat fee instead of $50 per hour for all misdemeanor cases.

Should I even go near the financial black hole that is the death penalty?  How, in times where basic rights of defendants may be in jeopardy – ordinary run of the mill defendants, mind you – can we even consider sustaining the machinery of death?

This will not end anytime soon and even if there is an alleviation of the financial crisis, the impact on the criminal justice system will be temporary. More crimes will be committed, more knee-jerk reactions will be induced and harsher sentences will be given out. The burden continues to build until there is a fundamental change in the way we think about the numbers, the crimes and the system.

A report from 2000, that I’ve mentioned before, seems to have gotten it right. Too bad no one is listening. I’ll reprint the salient points:

Prison overcrowding has a cyclical pattern in Connecticut — reaching a crisis point about every 10 years. The committee report showed most of the causes of prison overcrowding occurred outside the administration and jurisdiction of the Department of Correction and these complex issues and problems cannot be addressed by a single state agency. Specifically, the program review committee identified five main causes of prison overcrowding. They are:

• Despite the decrease in arrest and crime rates, the number of offenders in prison or jail continued to increase due to the “war on drugs”, increased funding for police, increased role of victims and victim advocacy groups in the court process, added bed capacity in the correctional system, recidivism and technical violations of probation and parole, harsher penalties for certain types of crimes, and narrowed eligibility for community release and alternative sanction options.
• Convicted inmates were remaining incarcerated for a greater portion of their court-imposed prison sentences as a result of the shift from an indeterminate to a determinate sentencing structure, elimination of “good time”, creation of time-served standards for parole eligibility, and the enactment of several “truth in sentencing” initiatives.
• The aggressive “tough on crime” approach supported by the legislature and adopted by the executive and judicial branches allows the criminal justice system to narrow its use of discretion and take a more conservative and less controversial approach to punishment.
• A lack of prison beds, especially high security and pre-trial beds, forced DOC to operate at capacity.
• Poor planning and a lack of an accurate population projection and offender needs analysis contributed to the cycle of overcrowding and hampered DOC’s efforts to adequately plan for new or expanded facilities.

In reviewing options available to manage and control growth of the inmate population, the committee found Connecticut cannot build its way out of a prison overcrowding crisis. However, prison expansion is one model to address prison overcrowding. This strategy has been Connecticut’s primary response to prison overcrowding over the past 20 years. It is the simplest but least effective and most expensive approach. Services in this model are concentrated primarily on the small percent (25 percent) of the offender population in prison.

And yet here we are: more crimes, longer sentences and an almost unmanageable burden. We’re still fighting the absurd war on drugs and on parolees and probationers. While our prison population has seen somewhat of a slight decline from the record numbers of last year, it would be a tremendous mistake to consider that an improvement. The record numbers were the result of the Governor’s ban on parole. But don’t let that obscure the fact that even prior to the ban, the population numbers were already at the breaking point.

And it’s not going to get any better. Per the OPM’s most recent projections, the population is expected to increase from its current numbers to around 18, 942. [Here are the Dec 2009 monthly indicators.] The most recent breakdown of inmates by crimes is this one from 2007. And here’s the most recent recidivism study [there's a wealth of information in there if you're interested].

So how is this to be done? Over the years, I’ve made many suggestions: legalize marijuana, get realistic about prison sentences, divert all non-violent offenders into treatment and community based rehab, address the problem at its root, etc.

[Update: This NYT editorial makes the case for smart reforms, pointing to a slew of legislation pending in NJ to make the prison system more rehabilitation centric. Among some of the proposals is one akin to the ban the box idea implemented in New Haven earlier this year.]

But it’s all a futile exercise. It’s never going to happen unless there’s a fundamental shift in the thinking. That shift may well be driven by the financial engine. So how about taking a different tact. How about we keep detailed statistics: how many people end up going to jail for a violation of probation for drug problems instead of to a treatment facility? Let’s keep a record of that for 3 years and calculate the cost of sending that person to jail. How about defendants sentenced to 7 years in jail where 5 years would have been just as good. Keep a track of the costs there. How many inmates were denied entry into programs for lack of beds and so instead were forced to take a prison sentence? Let’s keep track of that.

At the end of 3 years, let’s add it all up and look at the staggering cost of our penal system. Let’s put it into real numbers and compare it to the budget shortfall. Extrapolate that over the last 20 years and I bet we will see that these “tough on crime” policies have come at a significant, tangible cost to us.

From the NYTimes comes this heartwarming story of one of the nation’s elite universities privately funding an educational program in one of CT’s toughest prisons. Starting this year, Wesleyan brings its excellent curriculum and stringent admission requirements to prison, in an effort to educate and rehabilitate inmates, something the State of Connecticut and the DOC  have long given up.

For 19 spots, there were 120 applications, and rightly so. This program presents an unique opportunity: to get a high-level education and to attempt to rebuild one’s life and prepare for an eventual release into a world that won’t acknowledge their existence (for some).  There are several remarkable things about this program. One of them is that the crime of conviction is not a factor in who gets accepted into the program. So whether you’re a murderer or someone who was selling drugs, you have an equal shot at getting accepted. The second feature that struck me was that while there is no guarantee that graduates of this program will get a degree from Wesleyan, they will be entitled to access to career services upon release.

Imagine that! Inmates will have somewhere to go, armed with an education and the possibility of a degree and get assistance in finding a job. The State should be ashamed of itself.

Reading this article, I learned some things about Wesleyan and its tradition and history:

But the university has a long history of civic engagement that traces back to its Methodist roots. It is named after John Wesley, an 18th-century minister who championed prison reform and helping the downtrodden. Two students, Russell Perkins and Molly Birnbaum, who had volunteered in prisons as students, revived the idea last year when they were seniors and figured out a way to finance it.

What’s even more stunning is that this proposal was scheduled for a vote the very same day that a student at Wesleyan was gunned down in a bookstore. The school merely postponed the vote 2 weeks and during that subsequent vote, it was approved. Goes to show you that to recognize that not all “criminals” are the same, you merely have to have your head screwed on straight.

Of course, this brings the usual din of dissent and cries of “wah, you’re helping those scum criminals” from the usual suspects. I don’t have very many good things to say about the State’s victim’s advocate (none, really), so I’ll just quote her and let it speak for itself:

For two months now, the Ann Arbor chronicle has been publishing the Washtenaw Jail Diary, a series of chapters by a former inmate at that jail, chronicling his life behind bars and his experiences. Interestingly, the content of the chapters were originally published as tweets, but later taken down and deleted. This unnamed inmate is now in the process of writing a book, it seems, while at the same time publishing these stories in the newspaper. They’re up to the third chapter and you can find all the installments here.

The latest installment, Chapter 3, is of particular interest to me, because in it he writes about “The Public Pretender”:

I still cannot decide if I had decent representation within the parameters of the “McJustice” doled out via the overworked Public Defender’s office and the backroom horse trading that goes on. If I could have afforded a real lawyer, one with “connections,” would I have done as much jail time? I do not know the answer to that. I tend to think that I would have gone free sooner. But I will never know for sure.

I am taken from my block and brought to a room back near the dreaded holding tanks, meeting with the person with whom I am to entrust my life. And here, in front of me, is Clarence fucking Darrow, himself – all bluster and a bit cartoonish, reveling, it seems to me, in being the center of attention. He is surrounded by assistants, interns, law students – almost all of whom, I am strangely curious to discover, are attractive young women.

…

The Pretender tells me that I am not the usual kind of person he represents, since I am apparently well-spoken and educated. But that does not prevent him from launching into street lingo, some of which I ask him to translate for me. He speaks this way out of habit, I am guessing, to try to win the trust of his usual crop of clients.

I have mixed feelings about my Pretender. Do I want what appears to me to be a snake oil salesman representing my interests in these felony cases? Maybe this is exactly the kind of person I need on my side. The lawyer in my misdemeanor cases seemed much too timid for me – in fact, agreeing with the prosecutor in court.

But there’s more. For instance, this handy guide to writing a successful “speech to the judge”:

Major ingredients for a successful speech to a judge include:

1. Apologize to the court, to the community and to any victims harmed and admit your mistakes.
2. Talk about what you are doing while in jail to further your education, help the jail community or help control destructive behavior (AA, Alternatives to Domestic Abuse, GED, etc.).
3. Discuss your job possibilities after you return to the community and the support system of family and friends that awaits you.
4. Mention family members, teachers, members of the community who might have written letters to the judge on your behalf.

Do not:

1. Insist you are innocent.
2. Tell a hard-luck story about yourself and your family.
3. Fail to address the court clearly and with respect.

This post has been a long time in the making. Over the past few months, I’ve had to deal with clients – and have observed other lawyers dealing with their clients  – who have severe mental health problems. And each one of us can tell you that there’s nothing more difficult – or more heartwrenching – than coming to an appropriate resolution of a criminal case involving a defendant with mental health problems.

Not only does one have the normal problems of communicating with a person who may be hearing voices, or who may believe that he is an FBI recruit who has to save the world while the Russians are tracking him with embedded micro-chips, but one also struggles with the failings of a system that has no room for clients like that.

While I usually decry the heartlessness of prosecutors and judges on this blog, I have to say my experiences in this area have been to the contrary. While they don’t get in the way, they do join the defeaning chorus that reminds us of the futility of our efforts.

A question no more

I have long complained about the failure of governments to engage in any sort of meaningful re-entry for inmates. For a vast majority of released felons, prison is a revolving door. Without any training, education or skills, job prospects are dismal. With no job, there is no money and where there is no money, there is the lure of crime to make some quickly.

Which is why I was pleasantly surprised this morning, while listening to Where We Live on NPR. The guest was John DeStefano, mayor of New Haven, and he was discussing the policy he seeks to implement in the city: ban the box. No, this is not some traffic related policy, as I first thought, but a clever scheme aimed at integrating ex-felons back into the community.

Ban the box refers to banning employment applications from listing a “box” that asks applicants whether they are ex-felons. This allows ex-felons to be on the same footing as any other applicant, by preventing would-be employers from discarding them at the get-go.  I’m embarrassed that this story has escaped my attention for three months now, but the wonderful New Haven Independent is all over it:

The last few months have brought us a crashing economy and massive government bailouts to the tune of 34 trazillion dollars (it’s a real amount). As banks fail and the auto industry fails and the real estate market plumbs the depths of depression, an equally frightening scenario is unfolding in states throughout the country: the crumbling of indigent defense systems.

Just like the economy, however, this failure of the legal system should come as no surprise. Back in May, I wrote about the mess in Minnesota (and followed up with a June post about Florida) [full coverage here] and our sister blog PD Stuff has been covering money problems for years. Nevada will face some problems starting next year. Things don’t look all rosy in Connecticut, either, as legal aid is taking a hit.

The NYT piece is rightly drawing a lot of attention in the blawgosphere. Bob Ambrogi and J. Craig Williams devoted their recent podcast to this problem by interviewing the Miami public defender Bennett Brummer and NLADA research director David Carroll. [The podcast is at the end of this post.]

This is a very serious problem. As funding for indigent defense declines with no corresponding declines in prosecutions, defendants will experience greater wait times for their trials, resources will be stretched thin and the criminal justice system will produce far more wrongful convictions. There will not be enough time to conduct proper investigations, to hire experts and, frankly, to go to trial.

If a public defender has an obscene number of clients, a number which grows every day, there will a lot of pressure to resolve cases without much advocacy. This is where the rest of the justice system needs to step up. Prosecutors need to take their duty to seek justice more seriously and drop the pursuit of “wins”. Judges need to take a more mediation-oriented approach and broker fair deals and not permit the State to demand the moon.

From the NYTimes piece:

Mr. Jones, in between hushed conversations with clients in the hallway or the holding pen, said he wished he had more time to investigate cases and could go to trial more often, rather than accepting the police version of events and then, after a short discussion, helping his clients make a life-altering deal.

“I’d love to have time to visit the crime scene and do more legal research,” Mr. Jones said.

No defendant should ever have to put up with this. No lawyer should ever be in a position where he is advising a client based on incomplete information. This is not only a money issue, but a Constitutional issue. Skimping on public defenders offices now will only postpone the problem, because there will be a greater number of successful habeas corpus petitions or appeals, which will result in new prosecutions.

Or worse: Federal courts will have to step in and force the state to pay for adequate funding, something no one really wants. So you know, might as well bail them out now, right Prez-elect Obama? Seriously, who better to give federal money to? The banks that set up their own downfall? The auto-industry that refused to innovate? Or the hardworking public defenders that protect your and my rights, day in and day out, doing a community service for little money?

But these are tough economic times. Money is drying up. Perhaps this is a very appropriate opportunity to look at truly reforming the criminal justice system. Let’s provide more alternatives to incarceration and true rehabilitation, let’s not keep non-violent offenders in jail any longer than we absolutely need to. As costs of the prison complex go down, there will be more money to fund the defense of the innocent man. We should start to look at the exorbitant sentences handed down by judges. Do we need a 40 year sentence when a 15 year sentence should do? Do we have to be punitive in our punishments? Must people be on probation for 35 years? A true reformation of the criminal justice system would go a long way towards alleviating these woes.

Then, of course, there’s the death penalty.

 Discussing public defenders [38:46m]: Play in Popup

How many defense attorneys does it take to screw up a case? Or better yet, how badly malfunctioning does a public defender system have to be to get a court to blame it for delays in the criminal justice system?

Back in March, the Vermont Supreme Court issued a very curious opinion reversing a conviction for failure to prosecute in a timely fashion. The Court held that the three-years spent by the defendant awaiting trial violated his right to a speedy trial. Which would be fine if that were all to the story.

The reason for the delay? The defendant’s various public defenders.

In arriving at this decision, we acknowledge that much of the delay in prosecuting defendant resulted from the inaction of several of the assigned counsel who represented defendant during the three years he awaited trial.  As we discuss in detail below, however, the inaction of assigned counsel does not relieve the state of its duty, through implementation of the criminal justice system, to provide defendant with a constitutionally guaranteed speedy trial.  Indeed, the defender general’s office is part of the criminal justice system and an arm of the state.  When, as in this case, a defendant presses for, but is denied, a speedy trial because of the inaction of assigned counsel or a breakdown in the public defender system, the failure of the system to provide the defendant a constitutionally guaranteed speedy trial is attributable to the prosecution, and not defendant.

The Court finds that

irrespective of the reason for the delay, egregious delay in bringing an incarcerated defendant to trial must be factored against the state in a speedy-trial analysis because, as the Supreme Court emphasized in Barker, it is ultimately the government’s responsibility to bring a defendant to trial in a timely matter.  See 407 U.S. at 529 (holding that “the primary burden [is] on the courts and the prosecutors to assure that cases are brought to trial”)

You can read the facts for yourself, but what is important to recognize here is that Vermont is not the only state facing such problems with its public defender system. Normally, a lawsuit would be the appropriate way to remedy the lack of funding, but this certainly may make some ears perk up.

I will reserve judgment on whether the VT Supreme Court was right or wrong, but I get the sense that what the VT Supreme Court tried to remedy was what happens to every client in almost every system (albeit not to this extent), and that everyone accepts as the price of doing business.

Well, everyone except the legislature and the voting public, who are generally outraged that things take so long to go to trial. Maybe they shouldn’t take so long? Or maybe we shouldn’t be creating so many new laws and calling for “hard on crime” policies that clog our systems and lead to overworked public defenders.

Babel babble

One of the hurdles we have to deal with as criminal defense attorneys is the language barrier between us and our clients. A fair percentage of our clients don’t speak English or don’t speak it well enough for us to effectively communicate pertintent information.

The Court system provides for this by employing interpreters who stand next to defendants and translate anything that is being said verbatim. But that’s not good enough and doesn’t cover all communications between client and attorney. It’s also not fool-proof.

I could regale you for you hours with stories of interpreters that stretched the limits of their job description and started conversing with the clients. But I won’t – you’ve all been there.

Translating in court isn’t all that an interpreter is required for. What about letters to clients or phone calls or visits in person? Here, in CT, the interpreters office will send interpreters along on legal visits (if you ask for one) and will translate letters for you. This practice has inherent problems: the most important being confidentiality.

Any time you have a conversation with a client where a third party is present, confidentiality is waived. Anything you say at that meeting can be repeated in court. So what do we do? What do you do? Short of becoming fluent in Spanish and spanish-legalese, are there any options available? Without the assistance of the interpeter, one cannot communicate with the client, but if one does, then the conversation is not confidential.

Perhaps for those of you in private practice, there is an out. You use your own investigator who is fluent in Spanish. Those communications are probably still privileged. But for those of us in the public defender system, it creates a difficulty.

Ideally, there should be an independent interpreting service that enters into a contract with the pd’s office, wherein one of the conditions is confidentiality.

With the judicial interpreter’s office, there is only an implied confidentiality and, in reality, there is none whatsoever.

No one would actually try to use the information gained from such a meeting (or from “confidential” visiting rooms and telephones in prison) because the outcome would be a massive lawsuit and lots of headaches for the State, but that doesn’t mean that if push comes to shove, there actually is a cloak of confidentiality.

How does your State do it? For those in CT, how do you do it? Have you found a suitable workaround? Please share.

Stuck in the waiting area of a local Level 4 prison yesterday, awaiting the arrival of a client, my investigator and I got talking about prison cells. So we decided to map out the size of a standard prison cell in the waiting area where we were.

We used 80 square feet as an average size – and boy is that a small, small area. The waiting room was roughly three and a half times that size and I don’t think I could keep my sanity after spending one day locked in that room. I can’t imagine what it would be like to spend just one day in your average prison cell.

And it isn’t 80 square feet of open real estate, either. There’s a bed (or two), a sink and toilet and perhaps a shelf or two. Add to that boxes, files, books, a tv, a mirror and other things and you have almost no space but the bed itself.

So, I ask, why? Why must prisons be so confining? It seems to me that making cells that small and restrictive is adding a second layer of punishment. There’s the overall punishment of incarceration in a state-controlled facility: you can’t leave for a specified period of time, you eat and sleep and drink and take a shower when someone else tells you to, you have very limited contact with the real world, you have no access to fresh air or the outdoors – you have no freedom. Why compound that with an incredibly small room that further confines your ability to move around in the already limited environment?

Is it a wonder that people in prison are aggressive and angry – and sadly – many of them have mental health issues?

For those of you who say they deserve to be there, to be further punished, I ask if the taking away of liberty is not punishment enough? How long do you think you could stay sane if you were under house arrest? Imagine living in your house – however big it is – but without the ability to leave. You’re still in your house, but you can’t cook your own meals, you can’t access the internet, you can’t mow the lawn, you can’t go to the mailbox to get your mail, you can’t open a window.

At some point (pretty quickly, I imagine), it won’t matter that your house is 3000 sq. feet, as opposed to 80.  The punishment is in the restriction on liberty, not in the confinement like a caged animal (or should be). So, even if you lived in Buckingham Palace, at some point you’d feel confined.

Could you? Could you live in your house with the conditions I impose above for ten days? Two months? Five months? Two years? Two years. Think about everything you’ve done over the last two years before you answer that.

So what’s the harm in making prison cells a little…bigger? Isn’t it enough that we have confined these individuals for long periods of time? Must we also treat them like unwanted pets at a kill shelter? Maybe it’ll improve their mood a little bit, and with that, a chance at rehabilitation. But if you treat people like animals, they become animals. Show them some compassion and something good may come of it.

Take a look at this picture. What do you think it is?

It’s the Leoben Prison in Australia. As has been noted by others on the web, it looks like an Ikea Store. But it’s still a prison. Do you think the prisoners there are happy to be incarcerated? I bet they still feel pretty restricted. Here’s a picture of a jail cell:

But perhaps they don’t feel like society doesn’t give a damn about them and perhaps they feel treated like human beings.

Further related reading: A list of the most interesting, overcrowded, smallest and biggest prisons in the world

racial integration in prison cells

Three long years after SCOTUS held in Johnson v. California that prison segregation policies were subject to “strict scrutiny” and remanded to the Federal district court for further consideration, California’s prisons are about to enter a new era of racial desegregation.

It was an unwritten policy in California prisons that members of the same race would be cellies, so as to minimize the opportunity for violence amongst prison gangs, which are usually formed around race.

As a result of a settlement between the plaintiffs and California, however, inmates will no longer be permitted to be paired based on the color of their skin. Not all are excited about this move, however:

Many inmates fiercely oppose integrating cells, calling it a dangerous idea that is guaranteed to lead to widespread riots and death.

“It’s like screwing around with the ecosystem,” said Rodney Raxon, 35, a white inmate at Lancaster’s high-security prison. “We don’t want any part of it.”

Several inmates said racial separation helps preserve the peace. In dining halls and prison yards where convicts can commingle if they choose, they hang out with their own. Chosen representatives handle communication between groups, they said, to avoid riots.

As the gym’s black representative, Lavel Atkins, 34, of Compton, Calif., said he defuses nearly 20 grievances a day over issues such as whether one inmate’s splashing water on another was a sign of disrespect. There would be more disputes, he said, if members of various races were forced to room together.

The lawsuit was initiated by inmate Johnson who argued that segregation heightened the pressure on him (and probably other inmates) to align themselves with a gang.

This new program doesn’t mean there will be complete desegregation, however. Now inmates will be evaluated by a host of other categories to determine who would be an appropriate cellmate:

Under the program, prisoners were interviewed and assigned one of five housing codes based on factors such as criminal history, custody level and the inmate’s preference, said Terry Thornton, spokeswoman for the corrections department. The classifications determine whether prison officials can place an inmate in a cell with members of all other races, with one race but not others, or with only his own race.

So now race gang affiliation will be one consideration in determining who to pair together, not the only consideration.

I’m not sure if such a program has been undertaken in another state in the country; a state that has similar demographics and gang violence problems like California. The CA program is modeled closely on a similar program utilized by Texas back in the ’70s. But things have changed since then:

With more than 171,000 inmates, California houses nearly four times the population that Texas did when it began the process. And unlike Texas, which integrated with a prison population below capacity, California’s is 195 percent above capacity.

That overflow gives California officials less flexibility, said Thomas Beauclair, deputy director of the National Institute of Corrections. “They’ve got inmates in gymnasiums sleeping on the floor in some of their institutions,” he said. “It’s not going to be easy for them.”

California also faces a larger, more fractious and more entrenched gang problem, according to experts and prisoners. Northern Hispanics, for instance, are warring with Southern Hispanics.

So the success or failure of this program will be watched closely by other states in the country. After all, the major concern in prisons should be the safety of all people who are within those walls – that includes staff and inmates.

Of course, the violence in prisons is also a by-product of severe overcrowding and a breakdown of the rehabilitation function of our correctional institutions. Whether a degeneration of the social and moral fiber of the nation is also a contributing factor is too complex a question to contemplate or answer here.

But if this is a tool in maintaining safety and security in prisons, I am all for it.

One of the most important aspects of our job is maintaining attorney-client confidentiality and it is also an integral component of the adversarial system. We need confidentiality so clients can take us in their confidence without fear of repercussion. Clients need advice and we need the information without the filter of someone overhearing that information and using it against the client.

In the criminal justice system, where the burden of proof is squarely on the State, the confidentiality is even more important. Clients tell us all sorts of things, none of which the State needs to know.

In this era of Prison Nation, however, maintaining that confidentiality has some unique challenges. As the prison population grows, so will the challenges to maintaining confidentiality. For example, defense attorneys in San Diego were outraged when they recently discovered that their telephone conversations with clients were being recorded.

A lawyer for the Sheriff’s Department said the recordings, which defense lawyers say are privileged conversations protected by law, were made because of an inadvertent glitch in the telephone system.

But defense lawyers said the eavesdropping is a felony under state law and can carry penalties of up to $5,000 per call.

They are also concerned that prosecutors – who have access to the recording system from their desktop computers – could have been privy to conversations, too.

It’s bad enough that a “glitch” in the system led to recording highly sensitive and confidential conversations, but the thought that prosecutors had access to those conversations sitting at their desks should be enough to make anyone cringe and cross their legs. Then there’s this silly waiver argument:

However, all of the calls from the jail that were recorded have an automated message at the beginning warning that the conversation was being monitored or recorded.

“I don’t know if it’s privileged if both parties are warned they are being recorded,” Toyen, a lawyer and a special assistant to the sheriff said. “If a client in jail made a phone call to me and I heard that, I wouldn’t say anything that I wouldn’t want recorded.”

So some automated recording serves as an automatic waiver of attorney-client confidentiality? Why spew this nonsense instead of just admitting you messed up?

In Connecticut, there are two “types” of phones in prisons: counselor’s phones and pay phones. The pay phones are recorded and counselor’s phones are not (supposed to be). It is rare, but sometimes I do get clients calling from pay phones in the prison. That’s when I ask them to hang up and let them know I will call their counselor to set up a legal call. But even calls with counselors aren’t always “private”. The counselor’s office is in a cell block, with other inmates outside the door – and often counselors don’t even leave the office while the client is talking.

This problem with talking to incarcerated clients isn’t limited to the phone, though. In person visits with clients also have confidentiality problems. Holding cells in small courthouses are the least confidential of all locations and yet one has to talk to clients there. There are other inmates being held in those cells and there are marshalls milling about.

One of the largest correctional facilities in the State has the least sound-proof professional visiting rooms ever built. There might as well be no walls. Anything you say above a whisper can be heard by the people in the next room and quite probably by the correctional officers standing guard outside.

But such is the system and you learn to work with it. It’s an unwritten understanding that anything heard during these “confidential” meetings will not be used by the State against your client. It has to be – otherwise the State is looking at massive lawsuits. Imagine that they did use a statement or fact learned from such a conversation. The State could quite possibly be forced to build new courthouse facilities, new visiting rooms in prisons: it would be looking at a massive expenditure.

It’s easier to turn a deaf ear. But when the conversations are being recorded, the pretense of ignorance has been shattered.

photo credit: rekha6

It is no secret that one of the main causes of recidivism is a lack of opportunities for recently released offenders. As I’ve stated before, I’d like to see states take steps to ensure that, upon release, offenders have access to housing and jobs. If we provide them with a support system, then the need to turn to crime is greatly diminished.

So it makes me happy to see that one city is trying an innovative tactic. Philadelphia’s mayor announced today that employers would receive a $10,000 tax credit for hiring ex-cons.

Mayor Michael Nutter announced a program, being headed by an ex-offender, that gives $10,000 a year in municipal tax credits to companies that hire former prisoners and provide them tuition support or vocational training.

This is a fantastic program and one that should encourage more employers to hire ex-cons. Speak to any ex-con and you will hear stories of countless interviews, empty promises and, in the end, rejection, despair and frustration.

I can understand the point of view of employers, don’t get me wrong. People are hesitant to hire ex-convicts, because of the stigma. But that’s like asking which came first, the chicken or the egg. If ex-cons, who are willing to make a change in their lives, who want to make that change, aren’t given any opportunities, then they will get lumped in with those that have no such aspirations. They won’t get jobs, they won’t have housing or insurance or any money earned legally. Something’s gotta give and what better way to entice businesses than with money.

The scope of the ex-offender problem in Philadelphia was detailed in a report last fall that showed about 40,000 former inmates return to the city annually from federal, state and local incarceration.

At any given time, according to the study by the University of Pennsylvania’s School of Social Policy and Practice, the city of 1.4 million is home to 200,000 to 400,000 ex-cons, many in need of not only jobs but also education, health care and addiction counseling.

The study cites federal statistics showing that nearly two out of every three inmates released from state or federal prison are expected to be rearrested within three years.

This volume cannot be sustained. There has to be a way to provide opportunites for these masses and to curb recidivism. The savings in prison costs also warrant a mention. Let’s hope this program succeeds and that other states follow suit.

No state needs such an innovative program more than CT. Almost half the inmates in CT prisons are incarcerated for a violation of probation. I wouldn’t be surprised if more than half of those inmates returned to a crime for lack of legal employment.

One can hope.

Kevin Cales was sentenced to life a few months ago for the deaths of 5 people, whose car he ran off the road in a high-speed pursuit. The car he was chasing was driven by his ex-girlfriend, whom he was stalking.

Cales was attacked from behind while he was seated at a table eating lunch.

Correction sources said the inmate who killed Cales is an 18-year-old man who is serving a seven-year sentence for robbery and, until Tuesday morning, was being housed in the same unit as Cales. The sources said they believed the attacker was related to one of the victims in the crash.

The assailant punched Cales, who was seated, knocking him to the ground, and stomped on his head and neck, sources said. The attack took seconds, before correction officers were able to reach him, sources said.

Some may say, well, he got what was coming to him. I just think it’s sad. What’s also curious is that the DOC is usually good about identifying potential problems with other inmates housed in the same unit. They won’t house co-defendants together, nor will they house inmates who are related to victims in the same unit (heck, even the same facility) as the offenders.

But then again, this is prison. If you want to get to someone, you almost always can.

Well, well. Now that the budget has tanked and we might not even have a surplus, the Governor announced that she is considering vetoing the recently passed criminal justice bill.

Gov. M. Jodi Rell said today that the state’s worsening financial condition may lead her to veto high-profile criminal-justice legislation passed in reaction to last year’s Cheshire home invasion.

Legislation on her desk would stiffen penalties for certain crimes and provide resources for new prosecutors and police and probation officers.

Rell said the tougher penalties could be salvaged by her vetoing only the monetary portions of the legislation.

It is remarkable when you remember that just a few years ago, the State had a surplus in the $700 million range (am I remembering that right?).

Can you imagine if they’d approved new prisons? Geez…

I can’t say that I’m surprised, to be honest. As prison populations rise, cost rises and the bloated budget of Corrections is, in my opinion, a direct consequence of the harsh tact taken toward drug offenses.

Take a look at that DOC budget – somewhere around $650 million last year. Then tell me there’s no harsh sentencing in CT. The truth is that CT hands out some of the harshest sentences in the country.

On top of that, there’s really no parole right now. Prisons are overflowing. Cost is up.

Her idea of a line-item veto may not be feasible. It very well might not be possible to keep the increased penalties without providing the funding for prosecutors and public defenders to man the system.

On the other hand, maybe there are enough votes in the legislature to override any such veto.

Senate President Pro Tem Donald Williams, a Democrat, strongly rejected Rell’s veto threat.

“I think it’s outrageous to suggest at this late date that we would not go forward with critical investments in our criminal justice system that pretty much everyone has agreed to,” Williams said. “I think it’s irresponsible at this point to say we’re going to ignore all that, and not find the resources to make this investment. … We will find the money for this critical investment in public safety.”

We’ll see. For now, I must confess that I chuckled a bit when I read the headline.

More at CTLP and CT NewsJunkie