Solitary or silent?

This week I’m in the middle of my fifth trip in two months, and this time I’ve transported across the country to Philadelphia. If I’m lucky I’ll get a chance to tour Eastern State Penitentiary (ESP). If I make the tour, I’ll post pics.

So today’s a good chance to discuss two competing early models of prisons. The first of these, called the solitary or Pennsylvania system, was pioneered at ESP in 1829. As the name suggests, inmates were locked up alone and were visited only by prison staff and clergy. The inmates were supposed to work during the day. It was thought that this system was more humane than the models of incarceration otherwise in use, in which large groups of prisoners shared cells–often leading to violence, victimization, and further criminal behavior. It was also assumed that solitary confinement would give inmates the opportunity to consider the errors of their ways and reform themselves. That’s why these prisons were called penitentiaries.

The competing model was called the silent or Auburn system, after Auburn prison in New York. In these prisons, inmates spent the night in solitary cells. During the day they worked together, but they were not allowed to speak to one another. Corporal punishment (flogging) was widely used. This treatment was intended to dehumanize them and turn inmates into obedient factory workers.

The Auburn system was ultimately more popular. For one thing, inmates kept in solitary confinement for extended periods tended to go crazy. Prison overcrowding—a problem even in the 19th century—soon made single-occupancy cells impossible. And from a practical viewpoint, inmates could achieve more work and more kinds of work when they were in groups. This factor became important when people realized the potential profits from prison labor.

Both the Pennsylvania and Auburn systems eventually fell out of favor, replaced by other models of imprisonment. But if you have a story with a 19th-century prison setting, you might want to research which of these models was in use in your jurisdiction.

Does TSA get TMI?

I am fitting in a quick post right after trip #1 and before trip #2 (which will be closely followed by trip #3). Since all of these involve air travel, now is as good a time as any to mention the searches we must go through before getting on a plane.

By any measure, these searches are intrusive. They make us show ID (on my last trip, an agent was jovially playing Guess the Ethnicity of People’s Last Names). They go through all of our personal belongings, often in fine detail. They make us empty our pockets and take off shoes, jackets, and belts. They send us through a machine that allows them to essentially see us naked. And when mysterious blobs show up on the machine, they pat us down. All without the slightest suspicion that we’ve done anything wrong, or that we plan to. Doesn’t that sound like a violation of the 4th Amendment’s prohibition of unreasonable searches and seizures?

The courts don’t think so. They’ve ruled that plane travel constitutes a special circumstance permitting searches that wouldn’t be otherwise allowed. (Other special circumstances involve public K-12 schools and railroad and Customs employees.) When special circumstances exist, the courts take a balancing approach, weighing the degree of the intrusion against the need. Given the potential for hijackers and other violence in the air, the courts have concluded that what TSA puts us through is permissible.

Yeah, I wonder if the SCOTUS Justices have to go through that machine.

If you object to these searches? I guess you can always drive or take a train.

Incidentally, searches can be even broader at international borders. This means not just our physical borders with Mexico and Canada, but also seaports and airports that receive international flights. It also includes areas within 100 miles of our borders—and if you look at a map, you’ll see that this includes some pretty substantial population centers.

On a flight from Paris to Zagreb, I once forgot I had a penis-shaped brioche in my carry-on bag. It amused the French security guys quite a lot. Now I’m off to pack.

Movies that get it right

I just spent the weekend at a work retreat, and I’m about to embark on the first of several airplane jaunts. So my postings might be a bit sporadic for a few weeks. But I wanted to bring up a topic I was discussing with my colleagues this weekend: movies that get criminal justice right. Although I often critique portrayals of the justice system, sometimes it’s done well enough that I use a clip in my classes to illustrate a point. Sure, we can allow the filmmakers a bit of room for artistic license and the needs of the film, but here are a few well-executed movies to begin with. Do you have any to add to the list? Please mention them in the comments.

12 Angry Men

My Cousin Vinny

Cool Hand Luke

American History X

Inherit the Wind


Shawshank Redemption


Police communication

Today’s post is going to be especially relevant to folks who write spec fic or historicals. It has to do with the backbone of law enforcement: communication.

Nowadays, communication equipment is paramount to policing. That equipment comes in many forms: The emergency calling system (911 in the US) and the dispatchers it connects callers to. Police radios, computers, and phones. Dashboard and shoulder cameras. All of these create ways for police to communicate with the public and with each other.

But have you ever thought about how communication was managed before all these gadgets were available?

Prior to the late 19th century, if someone needed to call the cops, that person had to run to the police station and fetch them. In some places, rattles or bells were used, but as you might imagine, the range was limited, and the sounds could get swallowed in a noisy city. Furthermore, while these means might summon the cops, there was no effective way for police to communicate with each other.

The first police telephones came about in 1877. These were installed in public places, in boxes or kiosks, and allowed citizens to call the cops. An officer on the scene could also use the phone to talk to people back at the station. (TARDIS-style call boxes were introduced in the UK in 1929.) Police didn’t begin using two-way radios until 1933. Of course, portable computers and mobile phones arrived many decades later.

Even after police acquired improved communication devices, significant problems remained. One of these was incompatibility: the system used in one jurisdiction might not be able to connect to the system used in a neighboring jurisdiction. This made it hard for agencies to cooperate and share information. And since the US has a fragmented law enforcement system with thousands of different agencies, a single criminal event might involve multiple agencies.

The upshot of all of this is that if you’re basing your story in a different time than now—or in a different world—you should put careful thought into how your police will communicate. You could even use this as a plot point. While someone’s trying to call the cops in, say, 1840s Boston, your Bad Guy could be committing a lot of bad acts. Maybe that’s a good chance for your hero to step in?



Truth nuggets

If you watch crime shows, you’ve seen it a zillion times. A crime happens. The attractively dressed detectives gather evidence (or at least stand around looking good while someone else does). The evidence goes to the lab. Minutes later, the lab has an answer. And zap! the bad guy’s in custody, soon to be followed by a conviction. Roll credits.

Makes for a good story, but that’s not how things really work. Several truth nuggets about this scenario:

  1. Over 80% of arrests are made by uniformed officers, not detectives.
  2. Real detectives are generally not as pretty as the ones on TV, and they definitely don’t dress as well.
  3. A large percentage of crimes have little or no physical evidence—so there’s nothing to send to the lab. Or if there is any physical evidence, it’s of little value. When I was in college, I got robbed at gunpoint in the deli where I worked. The cops dusted the counter for prints, but dozens of people had touched that counter since I last wiped it. The chances of getting quality prints of the perp were about zero.
  4. Labs are backlogged. Sometimes for years. Even in an important, high-profile case, it will take many months before lab results are in.
  5. Scientific testing is not infallible. Lots of things can go wrong. Evidence can be mishandled. The lab tech may be unqualified or inept; there have even been cases where they deliberately falsified evidence. The science itself may not be as reliable or as valid as we assume. Even such a seemingly simple scientific technique as fingerprint analysis has been questioned.

I think all these truth nuggets can be exploited to craft a story that’s fresh and cliche-free. They create a host of plot possibilities. So use them!

But he said I could!

Let us suppose that a very large man—we’ll call him Chris—runs full speed at another man, who we’ll call Alex. Chris launches himself at Alex headfirst, using his arms to carry Alex to the ground, where Chris lands on top of him. Wow. That sounds like assault and battery, right?

Or what if Floyd repeatedly uses his fists to pummel Conor in the face and head, his ultimate goal being to beat Conor so badly that Conor can’t stand up again? Also assault and battery.

Except… not. Because if we stick jerseys on the first two guys and gloves on the second two, we have a different story. We have professional sports. And in the extremely unlikely event that Chris or Floyd were prosecuted for his actions, he’d have a good defense: consent.

The general idea behind the defense of consent is to avoid criminal liability when the “victim” has agreed to be victimized. And there are some interesting twists to this defense. For one, the victim has to be capable of granting consent, which means he can’t be too young, too mentally disabled, or too intoxicated. The consent must be entirely voluntary and not due to threats. Consent is also generally not allowed as a defense in homicide cases, although the idea of assisted suicide has changed some views on that point. And the actions taken must be within the scope of the consent.

That last point has led to some interesting cases. Several hockey players have been convicted for exceeding the game’s permissible boundaries and attacking opposing players. But the extra violence has to be truly excessive. For instance, Mike Tyson was never criminally prosecuted for biting off a chunk of Evander Holyfield’s ear. This could make a really interesting plot point, and it’s one I haven’t seen explored in fiction. So have at it!


The other day, my 14-year-old asked what the CJ system would do to a kid who “sort of accidentally” hurt another kid. (I’m hoping this question was entirely hypothetical.) My answer? “It depends.” Yeah, that didn’t satisfy her either.

The thing is, however, it depends. The first question is where the miscreant lives, because juvenile justice laws vary a great deal from state to state. In some states, the minimum age at which someone can be tried as an adult is 16. In some it’s 14. In some it’s even younger. The second question is how old our hypothetical delinquent is. And third, we’d need to know the details of the offense. What was the delinquent doing? Did she intend the harm or was it truly an accident? Did she have a weapon? Was she acting in self-defense? All of these factors will determine the type of offense she might be charged with and whether she has a reasonable defense. In some states, the decision of whether to try someone as an adult might lie with the prosecutor rather than the judge, depending on the offense.

Once I spent fifteen minutes explaining all of that to my daughter, she was shocked to learn that in California, where we live, she could be tried as an adult for some crimes. Then she had another question for me: if that hypothetical kid harmed another, could the delinquent’s parents get in trouble? My answer was the same: it depends. As circumstances warrant, they could be charged with something like child neglect or contributing to the delinquency of a minor. However, if the parents had supervised the child appropriately, hadn’t provided the kid with a gun, and generally did all the parental stuff they were supposed to do, it’s unlikely they would face criminal liability.

The upshot for you? If you want to include a juvenile offender, be careful how you craft the details, and be aware of your local laws.

In search of Truth

I’m teaching a class on the history of criminal justice this semester (woohoo! Fourth Lateran Council!), and this week’s discussion turned to an interesting question: what’s the best way for a court to find the Truth? This might be a good thing to consider for authors, especially those who are creating a judicial system in a fantasy world or alternate universe.

For various historical reasons, England and it colonies ended up with a different approach to this issue than did continental Europe. The English—and American—version is known as the adversarial system. Under this system, each side in a criminal case presents evidence to an impartial decision-maker, usually a jury. Each side decides which evidence it wants to present. The judge in this system acts like a referee in a sporting event, making sure each side follows the rules. In the end, the decision-maker determines which side has been more persuasive. Has the prosecution proved every element beyond a reasonable doubt? Or has the defense managed to refute enough of the prosecution’s case to raise doubts?

The continental version is called the inquisitorial system. I know that for many people, that name brings to mind the Spanish Inquisition, but I assure you that heretics are no longer burned at the stake. In this system, the judge takes a much more active role and will often lead the course of the trial, making determinations about which lines of evidence to pursue. The judge will also determine guilt.

I don’t know that there’s any proof that either system is more effective at reaching the truth. Research has suggested, however, that people tend to feel most comfortable with and confident in the system they’re accustomed to. If you’re building a fictional system, you’ll want to think carefully about what suits your world best.


Rule of Law

I’m going to try my best to keep politics out of this discussion. But lately there have been a lot of mentions of the Rule of Law, and I thought it might be a good time to discuss it.

The basic idea behind the Rule of Law is that law rather than people rules a nation. It means that no person in that nation is above or exempt from the law, not even those who create and enforce the law. Although the English phrase was first written around 1500, the concept has been around in many legal systems since long before that. In the Anglo-American legal tradition, the Rule of Law was explicitly recognized in Magna Carta in 1215; this document stated that even the King of England must obey certain laws.

Not all governments have respected the law. For example, when a dictator or autocrat is in power, or when a ruler is considered divine or a representative of divinity, he may will have unchecked power. And even when a governmental system nominally follows the Rule of Law, that promise is only good if someone is willing to enforce it. So if the ruler abuses his powers and those who are charged with controlling him do nothing, the Rule becomes meaningless.

I think it’s clear how all of this applies to us in the modern world, but how is it relevant to you as an author? If you are writing spec fic—especially fantasy or sci fi—you might want to think about the Rule. Does your fictional society respect it? How is it enforced? What happens when a ruler pushes the boundaries?

Defining humanity

Last week I posted about potential plot bunnies when dealing with the undead. This week I’m expanding on the topic a bit.

Under common law, homicide is defined as the unlawful taking of a human life. While seemingly simple, that definition has occasionally led to some interesting legal questions. For example, is an unborn baby “human”? At common law, the answer was no, but many have argued that at the very least, fetuses that would be viable outside the womb should be considered human.

If you are an author of speculative fiction, I think you could play with this issue in a number of interesting ways. Sure, there’s the undead, such as zombies and vampires. But what about sentient creatures from another planet? What about artificial intelligence—does it achieve humanity when it becomes sentient and self-aware? What if a human is genetically modified? What if so many parts of her are replaced with artificial bits that she’s barely organic? We’re talking an entire warren’s worth of plot bunnies here!

Relatedly, we have the issue of what constitutes “taking of a life.” In reality, this has come up in cases where the victim was brain-dead but still on life support, and when he died many years later from complications related to the initial attack. But again, spec fic offers us interesting questions. What if the victim is resurrected? What if his body is destroyed but his mind or soul—some essence of him—is preserved in some way? What if he’s reincarnated?

I think the world is sorely in need of more spec fic legal procedurals!