When someone is charged with a crime, we’re faced with a bit of a problem. On the one hand, our system presumes that a suspect is innocent until proven guilty. Therefore, suspects who have not been convicted should remain free while waiting for their cases to go to trial. On the other hand, some of those suspects are in fact quite guilty, and now that they’ve been caught, some of those guilty parties would no doubt abscond if given the opportunity. Therefore, we’d better lock them up while they await trial.

The solution to this conundrum, like many other components of our criminal justice system. comes to us from Merry Olde England. That solution is bail.

The basic concept of bail is simple. An accused person gives the court what amounts to a security deposit. If he shows up on his appointed court date, he gets the deposit back (regardless of whether he’s convicted or acquitted). If he doesn’t show up, he forfeits the money. In principle, bail insures against fleeing suspects while also allowing people to continue in their lives, retain their freedom, keep their jobs, and better assist in their own defense.

Bail rules vary across jurisdictions (big surprise, huh?). Generally, a judge has guidelines to follow based on the seriousness of the offense—not based on the defendant’s net worth. The prosecutor may request a higher than usual bail amount if the defendant is a particular flight risk. Bail might be denied altogether if the defendant is likely to flee; for instance, if he has few ties to the community or is a citizen of another jurisdiction. In some cases, bail might be denied based on the seriousness of the offense. In California, for example, people charged with first-degree murder cannot be granted bail.

If you read the US Constitution, you might notice that the 8th Amendment begins with this phrase: “Excessive bail shall not be required….” Federal courts must abide by that rule—although of course the Amendment doesn’t specify what standards should be used to determine what’s excessive. States, on the other hand, can ignore that clause entirely. That’s because of something called the Incorporation Doctrine—a long story we’ll save for another day. For now, suffice it to say that some small pieces of the Bill of Rights apply only to the federal government, and this is one of those pieces. So if a state wished to eliminate bail altogether, it could do so, although that would be an unwise decision leading to a crisis in jail overcrowding.

If a defendant is not granted bail or cannot afford it, he will remain in jail until trial. In practice, this means that poor people get locked up, while wealthier defendants tend not to be. Bail is controversial due to this aspect, and many critics have advocated for bail reform.

Defendants may also be released without bail. This tends to happen when the charges are relatively minor and the flight risk is small due the defendants’ strong community ties. In these cases, defendants will be released on their own recognizance (ROR for short). Once the defendant promises to refrain from criminal activity and to show up for court, he gets to go home.

In most places, defendants who can’t afford the full bail amount can hire the services of a bail bondsman. I’ll talk more about them next week.



Book ’em

I used to watch Hawaii Five-O when I was a little kid. It wasn’t my favorite show of its type—that spot was reserved for Emergency! (ah, Randolph Mantooth!)—but I do remember two things well about the Five-O. One, of course, is that catchy theme song. If that’s not the top TV show theme of all time, it’s certainly in the top five. The other thing I remember was Jack Lord’s oft-repeated phrase, Book ’em, Danno.

But what does that mean?

As the name suggests, booking is the process of adding a suspect to the books—that is, formally entering him or her into the criminal justice system. It generally happens after a person has been taken into custody—arrested—but may sometimes occur after a citation, when the person will not remain in custody. Once upon a time, the suspect’s information was recorded in an actual ledger book. Nowadays it’s all electronic.

A number of things happen during booking. The suspect’s name and other personal information are recorded, as are a few details about the criminal charges. Their mug shots are taken—a practice police have been following since roughly the 1840s. The suspect gives up all personal property, which is recorded and stored until his release, and usually gives up his own clothes for lovely jail attire. He’s fingerprinted. Eventually those prints will be entered into a national database. He’s screened for any physical or psychological ailments, and jail staff will conduct a body cavity search to check for contraband. Jail staff will check the system to see if he has any outstanding warrants. And then they’ll ask him a bunch of questions—not necessarily pertinent to the crime—to determine how big a risk he is and where to classify him in the jail. A DNA sample may be taken. In some jurisdictions, bail and a court date will be set. He’ll be given the chance to call a lawyer, family member, or bail bondsman.

If the suspect is low risk, he may be released on his own recognizance at this point. That means he goes free after promising to appear in court. Or he might make bail. But if he’s a big flight risk, he won’t be granted bail—and even if bailing out is an opportunity, he might not have the money for a bail bondsman. In that case he’s going to be locked up. He’ll be given some kind of orientation to the jail rules, either by an officer or via video. Then he’s going to spend some time behind bars.

Booking is not a fast process. Depending on the jurisdiction and whether it’s been a busy night, the whole thing could take four hours or more.

Incidentally, once someone is booked, that arrest record is permanent. Even if the charges are later dropped or he’s found not guilty, the arrest record is there forever. And his fingerprints (and maybe DNA) are in the system, ready to be discovered years later by an author seeking a clever plot point.




Deadly force

Today’s topic has been on a lot of minds lately: police use of deadly force. I’m not going to discuss the hottest issue, which has to do with aspects of racial bias. I’m also not going to address the equally important issue of deadly violence against police. Instead, I’m going to tackle a basic question: When can police use deadly force?

It’s weird—how many jobs allow a person to take another person’s life without going to prison? I think even the most ardent pacifist or civil libertarian would agree that police officers should be allowed to use deadly force under some circumstances. And even the most hard-nosed tough-on-crime person would agree that we ought to have clear and strict standards for the use of deadly force.

The old rule, going back to Jolly Olde England, was that police could use deadly force to stop a fleeing felon. But that rule evolved back in the days when the force in question was coming from an arrow or a blade, not a semiautomatic rifle. And back then, all felonies brought a potential death sentence.

The US Supreme Court narrowed the rule in 1985 due to a case in which an officer shot and killed an unarmed 15-year-old burglar who was trying to climb a fence. In Tennessee v. Garner, the court held that police could use deadly force to stop a fleeing felon only when that force is necessary to stop him and police reasonably believe the suspect poses a serious threat to police or others. In other words, if cops have a choice between shooting an unarmed suspect whom they don’t believe is dangerous or letting him escape, they need to let him escape.

Even when someone is not suspected of a felony or isn’t fleeing, police can use deadly force if they reasonably believe the person poses  a serious risk to them or to others. This isn’t actually a special rule for police; it’s just a specialized application of the general self-defense rules.

But all this raises two questions. First, what is deadly force? Basically it’s any force that could reasonably lead to a person’s death. Firearms are always going to count as deadly force, even if the person using them attempts to aim for non-lethal injury. Even the best sharpshooter can’t always hit an exact spot on a moving target, and anyway, a person could potentially die from shock or blood loss even if not hit in a vital organ. Besides, as a matter of practice, police are taught to aim for the center of the body because it’s an easier target than the limbs.

You don’t need a gun for lethal force, though. A blade would certainly do it. Explosives. A motor vehicle. Or a blunt instrument like a club or stick, depending on how it was used. Even a sharp pencil could be deadly force if it’s aimed at an eye or throat.

Sometimes other kinds of force can unexpectedly turn deadly. Choke holds, for example, aren’t supposed to be lethal but have resulted in many deaths, which is why quite a few police departments prohibit them. Some people have died from pepper spray. Several years ago, police in a town near me used a Taser on a motorcycle thief—who promptly caught on fire, apparently due to spilled gasoline. The suspect wasn’t injured, but he could have been. For the most part, things like pepper spray and Tasers are not considered deadly force even in the rare occasions when someone dies.

The second question is what happens when a cop thinks a person is dangerous but is mistaken. This happens all the time. It’s what happened to Tamir Rice, the 12-year-old who Baltimore police shot and killed because he was carrying a realistic-looking toy gun. It’s what the police officers claim happened in the case of Michael Brown, the 18-year-old shot in Ferguson, Missouri. And the rule is pretty clear: as long as police honestly and reasonably believe they or others are at serious risk, they’re justified in using deadly force, even if it turns out they were mistaken. Of course this leads to to a lot of situations where police say, “I thought he was going for a gun,” while others question police credibility. Some researchers also suggest that stereotypes about race and gender can play a part in police officers’ split-second determinations about whether someone is dangerous. That’s a valid issue of concern, but it’s a conversation for another day.


Letting the victims have their say

The US criminal justice system was never meant to serve victims. This may seem harsh, but it’s the reality. After all, look at the names of criminal cases: People of the State of California v. Smith. United States v. Jones. Criminal law is a battle between the government and the defendant. The government is, at least in theory, representing the residents of that jurisdiction who have allegedly been harmed by the defendant’s actions.

I know what you’re thinking. The residents have been harmed? What about the victims?

The main answer is that the civil law system is for victims. If someone is injured by a criminal act, the victim can almost always bring a civil lawsuit against the offender, whether or not that offender has been criminally convicted. The standard of proof will be easier to meet in a civil case than in a criminal case, which means that even when a defendant is found not guilty on criminal charges, he can still be held liable in a civil case (as happened, famously, to both OJ Simpson and Robert Blake). Furthermore, if the defendant was convicted, that conviction can be used as evidence in the civil lawsuit.

But victims might not want to get involved in a civil suit for various reasons. And even if they win, the most they can get is an award for money damages—which isn’t going to do them much good if the bad guy’s broke or sitting in prison.

Victims often do take part in criminal cases as witnesses, but whether they testify and what questions they answer are completely within the lawyers’ discretion and intended to serve the lawyers’ needs. By the time cross-examination is over, some (but certainly not all) victims may feel even further traumatized by the process.

Some years ago, a new way for victims to participate in the criminal justice process arose: victim impact statements. These come after defendants are convicted and before they are sentenced. They allow the victims to address the court directly—without being questioned by attorneys—and talk about the impact of the crime on them. The statements are usually prepared ahead of time and read in court, although some jurisdictions allow some or all of the statement to be video recorded.

Victim advocates say that these statements are a powerful tool, allowing victims the psychological satisfaction of having had their say and also, perhaps, informing the court on an appropriate sentence. But the statements are controversial. Critics say they introduce unnecessary bias and emotion. Critics also claim that those who attack powerful or well-loved victims are more likely to receive harsher punishment than those whose victims were already marginalized. If a homeless man is murdered, for instance, who will appear in court to talk about the effects of his death? But does that mean his life is less valuable than, say, a wealthy person with a large family?

What the sentencer (usually the judge) does with the victim impact statement is entirely discretionary. The sentencer might ignore it. Or the sentencer might take it to heart and award the maximum allowable punishment.

Incidentally, from an author’s perspective, a victim impact statement could make for a wonderfully emotional scene. It might also be a good way to allow otherwise silent characters to talk about their lives and feelings, so it could serve as an expository device.


Prison romance: Conjugal visits

Prisons are not exactly the most romantic spots in the world. Not that I haven’t read any good prison romances, because I have. But as a location for letting love bloom, the state pen is never going to rival that long sandy beach or a cozy mountain cabin.

One aspect of prison life has caught some people’s attention, however: conjugal visits. But it turns out that the reality is a lot less sexy than most people think.

For one thing, they have a racist past. They originated in Mississippi a hundred years ago, when a white prison warden figured sex was a good way to encourage black prisoners to work harder. The warden paid prostitutes to visit once a week, and inmates who’d pleased the guards got to take part.

As time passed, however, the reasoning behind conjugal visits changed, and they became more about maintaining family ties than about sex. In fact, some places renamed them extended-family visits to emphasize the involvement of inmates’ children, parents, siblings, and other relatives. Researchers found that the visits meant inmates’ family members were more likely to maintain contact with them while they were incarcerated. And once released, ex-cons who maintained those ties were less likely to reoffend. So what seems like a perk for the prisoner can also, arguably, benefit society as a whole.

Nonetheless, by the 1980s there was a strong movement to make prisons more punitive. Prisons did away with all sorts of things that the public viewed as pampering the inmates, including exercise facilities and education (never mind that many of these things help reduce recidivism). As a result, most states did away with conjugal visits entirely. Today only four states permit them: California, Connecticut, New York, and Washington.

Even in those few states that permit conjugal visits, not all inmates are eligible. Participants have to be relatively low risk and well behaved. Neither are all visitors eligible. If the visitor has a criminal record, he or she likely won’t be allowed. Those visitors who are allowed have to go through intrusive searches to make sure they’re not smuggling anything in. Those inmates who do get visits won’t get them often—usually just a couple of times a year at most. And the visits won’t necessarily last overnight.

Conjugal visits usually take place in separate facilities on the prison grounds, sometimes trailers and sometimes hotel-like facilities. They often include kitchens to allow prisoners to cook with their family members. They also generally include condoms. There’s no regular audio or video surveillance during the visit (although cameras may be present in case of emergency).

Most prisons require that visitors for conjugal visits be close relatives or spouses. Prison policies now allow conjugal visits by same-sex spouses or registered domestic partners, but as you might imagine, this is a relatively new change.

So if you have been imagining a conjugal visit as a good opportunity for sexy times between your characters, think carefully about whether the visit would even be available and keep all the limitations in mind. It might, however, provide a good chance for your people to have a private chat outside the supervision of prison officials. I wonder what they’re going to talk about.