Monthly Archives: May 2016

Accessorize!

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“Sally, darling, would you please open the bottle of wine?”

Sally smiled at her dashing boyfriend, who was busy pan-searing their steaks. “Sure, honey. Where’s the corkscrew?” She opened a kitchen drawer, closed it when she saw it contained nothing but take-out menus, and then opened the drawer next to it. She found a wadded ball of knitted fabric. Curious, she examined the object more closely. “What’s this, honey?”

Carl glanced over his shoulder. “A cap.”

“It’s… a ski mask.”

“Yes.”

“Do you ski?” She found this unlikely since they lived in Florida, but anything was possible.

“No. I hate the cold.”

“Then why do you have a ski mask?”

“I wear it when I rob banks.” He gave her a devilish smile. “It’s my accessory to crime.”

Yeah, okay. I’m sorry. Couldn’t help myself.

What is an accessory to crime? Specific definitions vary by jurisdiction, but a good general definition is this: an accessory is someone who helps commit a crime but doesn’t actually commit the crime itself. The parties who do commit the criminal act are called the principals. A person may be an accessory before or after the fact, depending on when the assistance is given.

Suppose Carl’s car is in the shop, and he asks Sally if he can borrow hers for his next bank heist. She says sure and hands over the keys. She’s now an accessory before the fact. In most of the US, if she was aware she was helping him commit a crime, she is liable for the same punishment as Carl, even though she wasn’t actually at the bank. Not only that. If he shoots and kills someone during the robbery, she’s liable for felony murder—potentially a capital offense—as long as the prosecutor can show that murder was a reasonably foreseeable outcome of a bank robbery.

On the other hand, suppose Carl’s car is doing fine. He doesn’t borrow hers and doesn’t tell her he plans to rob First National Savings & Loan. But after the robbery, he shows up at her place with a bag of money and a big smile. “Darling, would you do me a favor and stash this sack of cash in your closet? Oh, and if anyone asks, tell them I was here all day, okay?” If she agrees, she’s an accessory after the fact. She’s going to end up being charged with something like obstructing justice. The prosecutor will have to prove she knew Carl had committed a crime and she intended to help him get away with it. She will not be punished as severely as Carl, and if he happened to kill someone during that robbery, she can’t be charged with felony murder.

What about an accomplice (sometimes called an aider and abettor)? They also help commit crimes, but they’re present at the scene. Suppose Sally drives Carl to the bank—knowing he’ll rob it—waits in the parking lot until he comes running out and jumps into the passenger seat, and then drives away. She’s an accomplice. And just like an accessory before the fact, she’s as criminally liable as Carl.

There are all sorts of interesting twists we can add. What if Carl gets killed by a police officer during the robbery? If Sally helped him, she’s still liable for any crimes he committed. She could even be charged with his murder—even though she wasn’t there and a cop lawfully shot him! Or what if Carl’s a snake and rats her out in exchange for a plea deal? Then Sally might do more time than him. We can imagine her fuming in prison.

Accomplice liability offers the possibility of all sorts of interesting plot twists. And a bad pun or two.

 

Punished

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The Lord Ynix’ba looked down his long nose at the prisoner. “I find you guilty of stealing the Five Sparkling Dragon Stones of Zenthibon.”

The prisoner shook his head frantically. “No! No, my Lord! You don’t understand! There was this witch, you see, and she—”

“Guilty!”

The prisoner’s shackles rattled as he collapsed to the ground, sobbing. His crying was so loud that Lord Ynix’ba had to wait several minutes before announcing the sentence. The lord tapped his foot impatiently and played with the jewels in his bracelet.

Finally the prisoner was reduced to sniffles, and that was when Lord Ynix’ba spoke again. “I hereby sentence you to the maximum possible punishment—twenty years in Zenthibon Prison!”

With fresh wails, the prisoner was hauled away.

Okay, it’s your fantasy world. If you want to throw your criminals in prison, that’s your affair. But I urge you to think carefully before tossing those poor souls into cells and throwing away the keys.

The truth is, prisons are mostly a modern invention. Incarceration has been used for many hundreds of years, but rarely as a form of punishment. People were locked up in jails (or gaols, if you please) and in institutions such as poorhouses and workhouses, but the primary purpose of locking them up was to hold them until their trials. That’s still one of the main reasons people are kept in jails. Prisoners might also be locked up because they couldn’t pay their debts or because they were destitute and couldn’t support themselves. Again, though, punishment was not the main goal; they were sort of being held as collateral for their own debts.

So how were people punished? For more severe crimes, they were usually executed. Sometimes quickly, sometimes slowly and painfully. Almost always in public. In fact, executions served as a form of entertainment in times and places where entertainment was in short supply.

For less severe offenses, there were other options. Public punishments were common—think stocks and the like. The criminals would face a period of public scorn and humiliation before returning to their homes, families, and livelihoods. Corporal punishment—i.e., physical punishment—was also widely used. Flogging, branding, maiming, etc. Criminals could be made to pay fines. They could be sentenced to slavery or other forms of servitude. They could be banished. When Europeans were colonizing the New World, sometimes criminals were sentenced to transportation, which means they were forcibly taken to America (or later, Australia), where they had to work for a certain number of years before being freed.

But imprisonment—incarceration as punishment—was very uncommon. Why? Well, it’s expensive, it removes the prisoner from the workforce (which perhaps sends his family into poverty), and it keeps the bad guys behind walls, where their punishment isn’t visible and therefore might have little deterrent effect on the rest of society.

Prison as a punishment didn’t become popular until after the American Revolution, when it was touted as a humanitarian reform. “Keep miscreants locked up by themselves,” the argument went, “so they have time to reflect on their wrongdoing and reform themselves. Allow them to be penitent.” Yes, that’s where we get the term penitentiary.

Nowadays. of course, we lock people up all the time, especially in the US. But if you’re writing a historical set before the 18th century, prison probably shouldn’t be the fate of your criminals. And if you’re writing fantasy, sci-fi, or other kinds of speculative fiction, you should think carefully about whether prison as punishment makes sense in your world.

As for Lord Ynix’ba, if he’s decided that stealing those eggs was truly a big deal, our miserable prisoner will likely be fed to the orcs instead.

 

Juvie

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I’m going to start this post with a piece of solid advice: If you’re writing a story in which a person committing a crime is under 18 years old, research your state laws. The criminal justice system in general varies across jurisdictions, but that variance is especially notable when it comes to juvenile justice.

Here are some things you should consider:

  • The minimum age at which a person can be tried as an adult varies by offense and by state
  • The maximum age at which a person can be tried as a juvenile varies by offense and by state
  • The process of waiver (moving a case from juvenile to adult court) varies by offense and by state
  • The maximum age at which a juvenile offender can be incarcerated in a juvenile facility varies by state

Juvenile proceedings use different terminology than adult criminal ones, in part to avoid stigma. For example, it’s a hearing instead of a trial. The juvenile is adjudicated delinquent instead of being found guilty. He’s given a disposition instead of a sentence.

Juveniles are entitled to many of the same procedural protections as adults, including the rights to an attorney, to remain silent, and to appeal. What juveniles don’t get is a jury. The judge makes the decisions.

In theory, the purpose of the juvenile system is to rehabilitate rather than punish. It’s questionable how well the system lives up to this, but there are generally more dispositions available for juveniles than for adults.

Don’t assume that juvenile proceedings won’t come back to haunt an adult. In California, for example, certain juvenile adjudications can count as “strikes” that can later qualify the adult for a lengthy prison term if he gains a third strike. Juvenile records aren’t necessarily sealed—and even when they are, they may still be accessible to law enforcement and other agencies.

Finally, juvenile offenders may sometimes end up incarcerated in adult facilities. Most advocacy and policy organizations strongly recommend that this not happen, but it does.

 

 

Jails Versus Prisons

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Officer Carson smirked as she tightened the handcuffs. “How does it feel?” she asked.

“Dandy,” growled Scott Johnson.

“No, I’m the one feeling dandy, Johnson. I’ve been waiting a long time for this.”

Johnson raised his chin. “Yeah? Well, don’t get too excited. This thing is bullshit, and at worst, I’m gonna cop a plea. I ain’t gonna be spending much time in jail.”

Undaunted, Carson pushed him into the back of the patrol car. “Sure, Johnson. But you’ll be spending a good long time in prison.”

If I had a list of the most annoying things authors get wrong about criminal justice, confusing jails with prisons would be near the top. Yes, I know laypeople use the terms interchangeably. But a jail is actually a very different place than a prison, with different populations and different goals.

Jails (in some countries, spelled gaols) have been around for many hundreds of years. As was true in medieval England, the primary purpose of US jails is to hold pretrial detainees: people who have been accused of crimes and are awaiting trial. Some people who are awaiting trial are released on bail (a money deposit paid to ensure the defendant’s appearance at trial) or released on their own recognizance (with no guarantee except their promise to appear in court). But some can’t afford bail or, if they’re accused of very serious crimes or are flight risks, are denied bail altogether. Even though we’re supposed to presume them innocent, those people will sit in jail until their trial.

The second big group in jail are people who have been convicted of misdemeanors or minor felonies and who are serving sentences of less than a year. Unlike the pretrial detainees, the members of this group are no longer presumed innocent. And they’re being held as punishment rather than to ensure their appearance at trial.

Jails may also hold other people. These might include those who are suspected of being mentally ill and a danger to themselves or others and who are waiting to be transferred to a mental health facility. It might also include juvenile offenders, especially in sparsely populated areas where there is no juvenile hall, and sometimes also undocumented aliens awaiting hearings or deportation.

Jails are usually run by local law enforcement authorities. In California, for example, sheriffs’ departments often run the jails. Jail inmates are generally held in the city or county where the crime occurred. Jails may be very dangerous places, partly due to overcrowding but also because those detained for minor (usually nonviolent) crimes are often mixed with pretrial detainees who may be very violent indeed.

Prisons hold people who have been convicted of felonies and sentenced to longer than a year. These facilities are usually run by the state or federal government. A good number of US prisons are now run by private corporations (this is a fairly controversial practice).

There are a wide variety of security levels for prisons, ranging from honor farms and minimum security—where there’s usually no wall around the facility—to supermax prisons, in which inmates are essentially kept in solitary confinement for the length of their sentence. There are separate prisons for women and men. There are also specialized prisons available for inmates suffering from severe mental illnesses.

Scott Johnson may not spend much time in jail; if he has money, he can probably post bail fairly soon. But if the plea bargain doesn’t work and he’s ultimately convicted of something serious, he’ll end up housed in prison for a long time. Much to Officer Carson’s satisfaction.