Category Archives: inmate issues

Ban the box, save the ex-felon

I'm 1002 and you?

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:

Bailout where it’s needed: public defender systems

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.

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Speedy trial: whose responsibility is it?

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.

Legal fictions: Confidential communications

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.

Must prisons be so confining?

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

Hold your breath: prison de-segregation to begin

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.

Attorney-client confidentiality in prisons

The Least Of Our Surveillance Problems

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.

Creative Commons License photo credit: rekha6