Category Archives: inmate issues

An arraignment is a critical stage

2 Replies

It seems almost silly to me to have to blog about an opinion that declares that yes, an arraignment is a critical stage in a criminal proceeding. But this was apparently a matter of first impression in Connecticut courts and there is a dissent and the state has been pushing this issue for years, so it might be worthwhile as my civic duty. We’ll see.

But let’s start with basics, since basics are where things go wrong most of the time. In Connecticut, when you get arrested, you have to be arraigned. You’re brought before a judge, usually within 48 hours of your arrest, and either a finding of probable cause is made (if it’s an “on-site” arrest) or not if the arrest was made by warrant. That’s it. There’s no grand jury indictment, despite the State’s best efforts.

So what happens at arraignment? Several things:

1. If you have retained a private attorney, that attorney should enter an appearance on that behalf and actually appear there with you.

2. If you have not or cannot retain a private attorney you can make an application to be represented by the public defender, who will then stand with you when the judge calls your name.

3. Your bond is reviewed and set.

4. 3 above affects your liberty: do you stay in custody or do you bond out?

Now lets imagine that a bond is set, but you cannot post that bond, meaning that you remain in custody – in jail – throughout the entire time your case remains pending.

You have a due process liberty interest in pre-sentence confinement credit. Which means that all the days you spent in jail because you could not post bond, are counted as part of your sentence.

It has to be that way, otherwise there would be an equal protection violation and liberty would depend on how much money you have.

So while you sit in jail, waiting for your sentence, you’re “accumulating” “credit”. And then you get sentenced and that credit is applied to your sentence, that is, subtracted from it and viola! It’s as if you started serving your sentence on the day you first were held in lieu of bond.

And if it were only that easy, we wouldn’t be there.

Because what complicates things is multiple cases. Some more background: the only way DOC knows you’re in custody is if there’s a bond set on you. So you need to have bond set in every file that you’re in custody for. Where it gets a little hairy is if you post that bond on the first case, but then can’t on the second.

Example: You get arrested for getting into a bar brawl and are charged with Assault 3rd, a misdemeanor. The court sets bond in the amount of $1000, which you promptly pay, so you’re “out on bond” in the street, living at home. Let’s say three weeks later, the guy you got into a fight with passes you on the street, you lose your shit and you take a gun and shoot him. He’s not injured (we’re a family blog, after all) but you’re arrested and charged with attempted assault in the first degree – a Class B felony – and now a judge sets bond in the amount of $100,000 which you can’t post so you’re held in jail.

Remember, DOC thinks you have only one charge, but actually you have two. Lets say a 6 months go by and the victim in the attempted shooting relocates to Indonesia and the State is going to drop that case. But the barfight has other witnesses so they want you to plead guilty to a misdemeanor and a sentence of 6 months in jail.

Great, you think. I’ve got 6 months in the bank! I’ll plead, they’ll apply the credit and I’ll go home today. Done.

Errr. No. DOC never had you in jail for that case, so there’s no credit to apply to your sentence. You have to do 6 months in jail to satisfy that sentence.

Well, now what? You blame your lawyer, obviously! He should’ve known and if he’d done his job I wouldn’t be here!

That’s exactly what happened in Odilio Gonzalez v. Commissioner [PDF]. Gonzalez argued that if his lawyer had simply asked the court to raise his bond a nominal amount on the barfight charge when he got picked up on the shooting charge, DOC would’ve recognized the existence of that case and he would have started “earning” credit. Had that happened, he’d have been a free man 6 months earlier.

Simple, right? No. Because the State, in its infinite wisdom, has for years argued that there is no right to have a competent lawyer advise you in regards to bond matters. That your bond is not a critical stage in a criminal proceeding and that there is no Constitutional right to have proper advice.

Luckily the court didn’t buy that, instead arguing what I’ve just laid out above. It concluded:

In the present case, it is clear that ‘‘potential substantial prejudice to the [petitioner’s rights inhered]’’ to the arraignment proceedings and the petitioner’s counsel had ‘‘the ability . . . to help avoid that prejudice  . . . .’’ Jackson v. Miller, supra, 260 F.3d 775. Specifically, because the petitioner’s counsel failed to timely request that the petitioner’s bond on the first arrest and second arrest be raised, the petitioner was required to spend more time in jail than otherwise would have been required.

The petitioner was thus denied an essential liberty interest as the result of his counsel’s deficient  performance. This liberty interest easily could have been protected at either the pretrial arraignment stage or subsequent proceedings prior to trial by a request made by counsel to increase the petitioner’s bonds on the first two cases. The fact that counsel’s performance  affected the denial of this liberty interest leads us to the inescapable conclusion that the arraignment in this matter was a critical stage of the proceedings. Indeed, there is nothing more critical than the denial of liberty, even if the liberty interest is one day in jail. The fact that counsel’s ineffective performance, as found by the habeas court, led to the denial of liberty for some seventy-three days, only exacerbates the classification that this was a critical stage of the proceedings.

Of course, we shouldn’t blame the state. Logic isn’t their strongest suit. Although I suspect they’d feel very differently if their liberty was on the line and their lawyer forgot to have their bond raised.

Justice for society

2 Replies

To be cheeky about it, one could say that the only things in life that are certain are death and crime (there are people who, due to a lack of income, could avoid paying taxes). Crime is one of those things that, for centuries, caused people to try and eliminate it. They have routinely failed. As long as there are societies and laws and rules, there will be crime.

So having established that eliminating crime is a fool’s errand, we must turn to the question of what, exactly, do we do with all this crime that we have mucking about? Reducing it seems to be a fairly agreeable idea and a somewhat attainable one at that, too. There are two directions to approach this from: you stop people before they commit their first crime (with the acknowledgment that you’re going to fail some of the time; see above) or you stop people from committing their second crime.

You do the latter by punishing people for the crime that they have committed to teach them how not to behave: that committing crimes is wrong and socially unacceptable. You also do the latter by teaching those same people how to behave: that integrating into society and being law-abiding is an admirable goal.

What suffices as punishment for crimes that have been committed? Is or should the immediate and long-term loss of liberty and freedom suffice? Or do the conditions and the manner of that deprivation also have to be deplorable it to be considered equitable? And does the manner of that punishment have any bearing on the second approach, i.e., nurturing the better instincts in humans in an effort to aid them in controlling their circumstances and emotions.

One prison in Norway thinks so: that isolation from society is punishment enough and what people do while isolated will shape what they do when they are returned to society. The Bastøy prison is tucked away on a small island and home to 115 prisoners who have committed all manner of crimes – ranging from murder and rape to drug peddling.

From the Guardian article, written by convicted murderer-turned-journalist Erwin James [for more on him, read this]:

I wasn’t sure what to expect on Bastoy. A number of wide-eyed commentators before me have variously described conditions under which the island’s 115 prisoners live as “cushy”, “luxurious” and, the old chestnut, “like a holiday camp”. I’m sceptical of such media reports.

Whether it was as those adjectives described it or not (it’s still a prison, remember) is beside the point. The point is that such descriptors reflect our attitude toward what a prison should be and yet such attitudes are entirely at odds with what is actually productive and beneficial to society.

Says governor of the prison – and clinical psychologist by profession – Arne Nilsen:

In closed prisons we keep them locked up for some years and then let them back out, not having had any real responsibility for working or cooking. In the law, being sent to prison is nothing to do with putting you in a terrible prison to make you suffer. The punishment is that you lose your freedom. If we treat people like animals when they are in prison they are likely to behave like animals. Here we pay attention to you as human beings.

“If we treat people like animals…they are likely to behave like animals” is precisely what a client once said to me. Nilsen concludes:

It is important that when they are released they are less likely to commit more crimes. That is justice for society.

And does it work? Norway has one of the lowest rates of recidivism in the world and Bostoy’s recidivism rate is 16%, compared to anywhere from 40-60% for the United States, where we warehouse prisoners as cattle and treat them like no more than parts on a never-ending assembly line.

It is true that Bastoy accepts transfers from inmates who have shown a true dedication to change. It is true that Norway has maximum security prisons where the worst of the worst can be housed. But it is also true that Norway’s justice system is less interested in retribution and more so in rehabilitation and reintegration and – dare I say it? – justice.

“Do as I say, not as I do” is no way to be a role model for those among us who have succumbed to undesirable instincts and behaviors. Compassion, understanding and help, while simultaneously imposing punishment by depriving an individual of liberty, seems like a measured way to repair the wounds of individual victims and society in general.

As James concludes:

On the ferry back to the mainland I think about what I have seen and heard. Bastoy is no holiday camp. In some ways I feel as if I’ve seen a vision of the future – a penal institution designed to heal rather than harm and to generate hope instead of despair. I believe all societies will always need high-security prisons. But there needs to be a robust filtering procedure along the lines of the Norwegian model, in order that the process is not more damaging than necessary. As Nilsen asserts, justice for society demands that people we release from prison should be less likely to cause further harm or distress to others, and better equipped to live as law-abiding citizens.

Don’t we owe that to ourselves?

———————————————

Two other things of note:

1. The disparate prison terms in Western Europe and the United States bear remarking. The maximum life sentences in those countries are 20-odd years, whereas here, in the U.S., one can get that much time for simply robbing a store. It is certainly an indicator that we, in the U.S., value life and potential less than elsewhere.

2. Compare the subtle reporting of Erwin James – a former prisoner and engaging writer – with that of the anything-but-subtle-relying-entirely-on-cliches style of this CNN reporter, also reporting on Bastoy. I couldn’t shake the sense that the CNN reporter was reporting with disdain; in that, I think, he lost the point entirely.

H/T: Karen Franklin, whose blog you should be reading.

 

Life without possibility of redemption

21 Replies

I sat in a prison cell yesterday. And not your regular bullpen where they cram in 4 people who’re waiting to go to court. The real deal. Where our clients sleep at night (and often during the day). That of the 60 square foot variety.

There was a bed – a small bed – that was the length of the room. At the foot of the bed a metal toilet, with no cover. Just beyond that the heavy metal door, with a slit for a window. The door was maybe 3 feet wide, if that. At the head of the bed, if you were laying on your right side, you’d be about half a foot away from an ugly metal desk with holes that pretended to be drawers. This could not have been more than a foot long. The bed was flush with one wall. The desk with the opposite.

The bed looked hard, cold and dirty. And that’s it. This particular cell happened to have a window at the head of the bed. A window looking out onto nothing. Any future inhabitant of this particular cell would have it good. It was a single. Across the narrow passageway from this cell was another, identical in every respect except two: it was a double cell and there was no window. (Here’s a post I wrote a while ago about a different take on prisons in a foreign country.)

I didn’t have the courage to ask my escort to have them close the cell door for a minute, locking me in. It was nauseating and claustrophobic enough as it is. Maybe I was having a panic attack, or maybe the air in there was dead, like the spirits of the men that inhabit these cells, but I thought I was going to faint.

I willed myself to stand there, though, for a minute. To look around at the bare walls, the bare desk, the dirty toilet and imagine someone “living” there.

I even briefly closed my eyes and tried to picture myself there, day in and day out, for months, which turned into years, which turned into decades. Continue reading →

Saving the next generation

Leave a reply

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 time to wake up (updated)

4 Replies

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.

Non sum qualis eram

3 Replies

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: Continue reading →

Life on the inside: an inmate’s view

4 Replies

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.