Some real effects of the US approach to crime - Part 1

A German friend of mine recently opened a paper presentation at a prestigious law school with a story about going to a feminist legal theory workshop. The talk was about constitutional law and European intervention into regional ethnic disputes so the audience was pretty perplexed about the mention of feminist legal theory. My friend continued that he discovered at the workshop that studies show that female academics tend to open their articles and presentations with an anecdote in order to humanize their accounts. Males instead tend to open with statistics, in order to show the prevalence of the problem or issue that they are addressing.

How was a sensitive new-age academic supposed to start a presentation? He decided to go with a bit of both. This was a great opening story, my friend had managed to introduce humor into his presentation AND score points with the feminists and/or legal theorists in the audience – a pretty important thing for a white male speaking at an Ivy League Law School these days. But it also got me thinking about my writing – how do I bust sexual stereotypes and manage write to appeal across genders? In the great post-modern tradition of "choose your own adventure" I give you "choose your own article".

Anecdote:

On April 5, 2000 Associate Press released a news snippet entitled "man jailed for 16 years in Texas for stealing a snickers bar". The headline sounded too strange to be true but apparently the offense was not as trivial, or the sentence as harsh, as it seemed. The text continued that Assistant District Attorney Jodi Brown had helpfully explained: the Snickers bar was king-size, "and it was a Snickers bar. If it was a Milky Way, we probably wouldn't have even tried him on it."

Besides, the man, a Mr Payne, "was no stranger to the system and disregarding the law". Mr Payne was tried as a habitual offender, raising the misdemeanour shoplifting charge to felony theft. His previous conviction: stealing a bag of Oreos.

Statistics:

Every week in the US, on average, a new prison is built. The US recently hit the 2 million mark in its population of prisoners – that’s more people than the population of Brisbane. The country, according some sources, passes rivals South Africa and Russia and now has the world’s largest prison system.

In Australia we devote mountains of column inches over our outrage over the death of one young aboriginal boy in custody serving 28 days for stealing stationary. And rightfully so. The 16-year Snickers bar sentence didn’t raise an eyebrow here, I read about it in the Australian press. In the US 45 juveniles died in one year, 1994, after being placed in adult prisons.

Prison is a pretty useful place to store the people you don’t want to deal with. Most of us assume prison is for very bad people who have surrendered their chance to be treated properly and what happens to them inside doesn’t really matter. But when a prosperous and supposedly humane country like America starts to put so many people away it is worth thinking "what is going on?" If you look more closely, both at the overall statistics and some of the human stories behind the statistics there is even more reason for concern. This article looks at some groups that dominate the population of prisoners in the US – drug users, the mentally ill, black people, pre-trial detainees and battered women.

The innocent – presumed and actual

Innocents actually form the majority of prisoners in the US. What? Well there are two kinds of innocence – one where you didn’t do it, the other where you have not yet had the chance to be tried and convicted of an offense in a court of law by a jury who finds you guilty beyond reasonable doubt (known as presumed innocence).

The first category of prisoners - the actually innocent - have been getting a lot of press lately in the States. The list of recent scandals includes 85 death row prisoners conclusively proved innocent (including 13 since 1977 in Illinois only); the Innocence Project's DNA exoneration of 69 people convicted of serious crimes (mostly rape and murder); 241 homicide convictions overturned after prosecutors lied or misled the jury; a forensic pathologist who faked 10 years of lab results resulting in 170 rape and murder convictions; the FBI study where DNA testing exonorated a quarter of police 'prime suspects'; 40 confessions obtained as a result of police torture in Chicago; numerous scandals involving brutality, torture and corruption in the LAPD; and a series of fingerprint planting revelations by police from California to upstate New York.

Ironically, at a time when people are realizing that there is good chance that a great number of people in jail actually 'didn't do it' there is an increasing push for the rights of defendants at trial - the protection against false convictions - to be limited. Even people like Al Gore are saying defendants in the US have far too many rights and it is time to scale some of them back. If this push is successful in making legal changes, such as the proposed victims rights consititutional amendment, it is highly likely that the number of actual innocents in jails will increase.

But spare a thought for the other type of innocent - the presumed inncoent. There are four times as many people in custody who have not yet been convicted of any offense than those who have been convicted. The vast majority of prisoners in the US are presumed innocent.

There are good reasons to be presumed innocent before conviction. The best one is many people are actually innocent and can only prove this if they are granted a fair trial. Another reason is the importance of the State knowing that it can’t just lock someone up – they need to prove their case. Considering that 94% of cases are plea-bargained, the fair trial we see on TV rarely happens. Without lawyers testing evidence in court we rely on the State to have solid proof before charging anyone with a crime. But mandatory minimum sentences are so high that many people, including innocent people, plead guilty to a lesser charge just to avoid serving incredibly long prison terms. This puts all the bargaining power in the hands of the state - especially when defendants have already spent several months in jail - and there is little need for solid proof in order to obtain a guilty plea. This could help explain why the US has been plagued by scandals of police and prosecutorial misconduct - without the scrutiny of zealous defense lawyers (as opposed to overworked and underpaid public defenders) it is easy for law enforcement to get lazy and focus on just getting a conviction - any conviction. The police seem effective and the prosectuion has a high 'win' rate. But what happens to the people inside?

Anecdote:

Jonathan Hicks is a 28-year-old father of two. He is paralyzed from the waist down and confined to a wheelchair. Jonathan was charged with a very serious crime – aiding and abetting a rape. The evidence against Jonathan had many flaws – the most extreme one being a statement from a witness that claimed Jonathan had got out of his wheelchair and walked across a room towards the victim. The police didn’t care about any flaws in the evidence - they assumed Jonathan was guilty, arrested him and threw him roughly into a paddy wagon. Jonathan’s custom-made wheelchair was broken by the police. Jonathan spent the ride to the station handcuffed and in terror as he was thrown about in the back of the wagon without being able to use his legs to balance himself.. It seemed to him like the police were swerving around on purpose. Because Jonathan didn’t have a working wheelchair he was taken to his arraignment on a stretcher and forced to lie on the floor, utterly humiliated, during the hearing. The judge looked at this disabled man lying dejected on the floor and denied bail.

Jonathan spent seven months in jail. He was regularly left lying prone on his bed for days, unable to move about his cell. There were no adequate disabled-equipped shower facilities or even room in one to fit a wheelchair and he went two months without being allowed to have a shower at all. Jonathan was not provided with the equipment he needed to disimpact himself and he was regularly forced to lie in his own excrement, once for 10 days on end. Eventually he smelled so bad that a petition was formed by prisoners to request that Jonathan be allowed to shower. Jonathan had to be hospitalized for an aggravated pressure sore caused by spending too long sitting in an inadequate wheel chair and a resulting infection from constantly lying in squalor. Straight after release from hospital he was forced to sit on the pressure sore for seven hours. Perhaps worst of all, on the way to a court hearing guards failed to strap on a restraint on his wheelchair and took a pothole-ridden route instead of the longer wheelchair route. Jonathan was thrown from the chair and broke his leg. All this occurred, remember, before Jonathan had been tried, he was presumed innocent. This took place in 1997, in Connecticut, America’s richest state.

After his first trial ended in a hung jury, and faced with the threat of a long prison term in intolerable conditions, Jonathan’s lawyers begged him to plead guilty and he vehemently resisted. Eventually he agreed on the condition that his plea be officially recognized as one that did not contain any admission of guilt. Jonathan had been such a passionate and inspirational advocate for disabled rights that when he was sentenced the hearing was moved to New Haven’s biggest courtroom, and every seat was filled. Hundred of letters were sent to the sentencing judge on Jonathan’s behalf. More than 15 people testified: most, including disabled people who had been themselves victims of rape, wept as they pled for leniency. They wept again when Jonathan was sentenced to 18 months in jail. A law suit filed on behalf of Jonathan by by pro bon lawyers from the Yale Law School disability advocacy clinic foundered when the State prison system used a claim of legal immunity. Jonathan is still in jail and he is still battling to be allowed basic rights - such as to take a shower.

Not all people in prison are disabled, not all are nice, and many are not innocent. But a lot are. Jonathan’s story shows that pre-trial detainees are far from gaining special treatment, let alone the basic dignity that the presumed innocent should be able to expect. At least he was spared the rapes, beating and abuse from inmates and guards that most other prisoners experience. With well over one million pre-trial detainees in custody there are probably many more stories just like his one. Oh, and I should have mentioned: Jonathan is black . . .