Monthly Archives: December 2016

The hole

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You’ve heard it mentioned in countless prison movies—the hole, prison slang for solitary confinement—and it turns out, the truth is pretty ugly.

Let’s define the term first. An inmate in solitary confinement will be housed alone. Generally, the only humans he interacts with will be prion guards, and even that will be brief. He will remain in his cell almost all the time, perhaps being permitted out for a brief period to shower or exercise (also by himself). Solitary has other nicknames too, such as adseg (short for administrative segregation). Solitary is often placed in an area called the SHU, for Secure Housing Unit.

Some of the first US prisons used solitary for all inmates. The theory was that prisoners kept alone would have time to think about their erroneous ways and reform themselves. What happened instead was that, deprived of human contact, the prisoners went crazy. Because solitary confinement was also expensive and restricted inmates from doing most kinds of work, it was soon replaced by other prison models.

But solitary remains in use for several purposes: 1. Punishing prisoners for crimes or misconduct committed while they are locked up; 2. protecting vulnerable prisoners from other inmates; 3. restricting suicidal inmates’ access to objects they could use to harm themselves; and 4. segregating inmates determined to be especially risky, such as gang members.

Conditions in solitary vary a great deal. In some cases, they are very poor. The cell may be extremely small and sometimes devoid of everything except some kind of toilet. The inmate may even be naked. Prisoners in solitary are often given little to do with their time.

There are no limits on the length of time someone can spend in solitary. Some have spent decades there. Many advocates argue that this amounts to torture, especially when the prisoners are young or mentally fragile. It’s also poor policy, in that most prisoners in solitary will eventually be freed but will have a sky-high risk of recidivating.

The US uses solitary to a great extent, and some people claim that this amounts to human rights violations, especially when the confinement is long-term.

What lawyers really do

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Word association time! When I say lawyer, what image comes to mind? Probably someone in a suit, standing in a courtroom and making passionate arguments. And sure, some lawyers do that. In reality, however, the vast bulk of attorneys’ work in criminal cases—whether the lawyers are defense attorneys or prosecutors—takes place outside the courtroom.

The United Kingdom and some other common law countries have two kinds of lawyers: barristers act as advocates in court, whereas solicitors do most of the out-of-court work. We don’t make this distinction in the US, however, and even the UK has blurred the lines in recent years.

Only about 5% of criminal cases ever get to trial. In the other cases, the charges are dropped, the defendant pleads guilty, or a plea bargain is reached. That means that in 95% of criminal cases, the lawyers will never step foot in court.

But of course that doesn’t mean they aren’t busy. They’re leading investigations into the evidence; interviewing the defendant, victim, and/or witnesses; doing research into the law; filing paperwork such as pretrial motions; and discussing the case with the opposing side. Depending on the complexity of the case, these activities will last months or even years. And if the case does end up in court, while the trial is going on the lawyers will continue to do a lot of work behind the scenes.

I know trials make for exciting drama on the screen and in our pages. It’s a bit more challenging to draw excitement out of a scene in which someone’s drafting a motion or memorandum. (“Heart racing, she paused with her finger hovering over the mouse button. Should she click Search now, or were her Boolean terms too broad?”) But if you’re going for accuracy in your depiction of a lawyer in a criminal case, you should at least acknowledge the amount of effort going on outside the courtroom.

Signed, sealed, delivered?

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While Mary’s parents cried and her lawyer droned on, Mary sat serenely in her chair. Big deal if she was facing burglary charges. The lawyer had already told her she was going to get probation. And that crap her parents kept whining about—how this was going to ruin her future? Bull. Mary was only 16 and being tried in juvie court. As soon as her 18th birthday rolled around, her records would be sealed and it would be like nothing bad ever happened. Smooth sailing.

Hang on there, Mary. You’re assuming way too much.

First off, this is yet another of those situations in which the law varies by jurisdiction. So if you’re writing about this, check your state laws.

And second, it’s never as easy as Mary assumes. In some states and in some cases, sealing of juvenile records is automatic. But those situations tend to be limited to minor offenses committed when the kid was especially young. Usually, a person must go to court and file a petition to have a juvenile record sealed. Even then, many limitations apply. In California, for example, only certain kinds of records can be sealed, the person must now be over 18, and it must have been at least 5 years since the person has had significant contact with the criminal justice system.

Furthermore, even when juvenile records are sealed, they may still be available to some parties. For instance, they may still come up during a criminal background check conducted by various agencies. They won’t simply disappear.

If juvenile records are sealed, the person doesn’t have to report the offense when applying for jobs.

If Mary is 16 and facing a burglary charge, her juvenile record probably won’t automatically be sealed. If she’s in California or a state with similar rules, she can’t even try to have it sealed until she’s 21. And even then, if she hoped to work in law enforcement or get high security clearance for a federal job, she’s probably out of luck.

Incidentally, most states also allow some adult criminal records to be sealed and expunged. This is generally a difficult hurdle to leap, but it can be done. Years ago, I had a student who was convicted on drug charges at 18 but later turned his life around. He became an outstanding college student who gave a lot to his community. He had his record expunged and ended up with a career as a probation officer, trying to help other young people fix their lives.

Changes of venue

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Among other things, the 6th Amendment guarantees defendants the right to an impartial jury. Seems simple enough. But what if a case is so high-profile or notorious that everyone in the vicinity has heard the details, and it becomes impossible to find potential jurors who haven’t already drawn conclusions about the defendant’s guilt? In that situation, a lawyer can file a motion for a change of venue.

If a change of venue motion is granted, the trial will be moved to another jurisdiction. If the defendant is being prosecuted under state law (as most are), the case will end up in another county in the same state. If the case is being prosecuted by the feds, the case will move to another state.

There’s a strong reluctance within the justice system to grant changes of venue. One reason for this is that the 6th Amendment states that the jury should be “of the state and district wherein the crime shall have been committed.” More practically, however, changing venue is expensive. The entire legal teams for both sides have to travel and temporarily relocate, as do witnesses. And the defendant will need to be transported, usually along with a lot of police.

Sometimes, though, it’s going to be nearly impossible to constitute a fair jury. This is sometimes demonstrated by the requesting party via public opinion polls or other research showing high local levels of knowledge about the case and showing that most locals have already drawn conclusions about the defendant’s guilt.

Either side can request a change of venue. It’s far more often the defense who files this motion, but the prosecution can as well. Very recently, for example, the prosecutor moved for a change of venue for a white University of Cincinnati policeman charged with murdering a black man.

You may be familiar with some famous cases in which changes of venue were granted, such as Timothy McVeigh (the Oklahoma City bomber) or the LAPD officers in the Rodney King case. Nevertheless, granting these motions is a rare thing.

Even in high profile cases, judges will deny change of venue motions if they believe it’s possible to obtain a fair jury, or if they believe the case is so notorious that moving it won’t do much good. When Boston Marathon bomber Dzhokhar Tsarnaev was tried in 2015, for instance, the judge refused to move the case.