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!


Do you write paranormal or horror? Then today I have a plot bunny for you, courtesy of friends and my daughter. Let me preface this by saying that, like many attorneys, I enjoy considering legal hypotheticals. We can’t help it. Law school ruined us.

So my younger daughter recently sent me this text:

She was at a birthday party. I don’t even want to know how the subject came up. But I posted the text on Facebook, which led a couple of friends to make comments about zombies. And that leads to today’s plot bunny.

Suppose Alex is a zombie. And further suppose Alex  attacks Bob, a living human being, and kills him. And then, maybe after some time has passed and after Bob has begun his own zombification process, Alex eats Bob’s brainnnnns.

Assuming zombies are subject to criminal laws, can Alex be charged with two homicides?

Part of our answer will depend on an interpretation of the law. Homicide is generally defined as the unlawful taking of a human life. So are zombies human? If not, Alex can be charged with only one homicide, plus maybe desecration of a corpse. If zombies are human, another question arises. Does it violate double jeopardy to charge someone with killing a person and then destroying the zombie that person has become?

We could add some other twists as well. What if Alex kills Bob, abandons the corpse, returns before Bob has risen as a zombie, and eats his brainnnnns then? Would that still count?

And what defenses might Alex have? Can a zombie form mens rea?

One of my law profs once gave a lecture about how lawyers are vampires, but I think lawyers and zombies could be fun too. So please. Consider writing a zombie legal procedural novel?

Jailhouse lawyers

In June I toured the Wyoming Frontier Prison, which operated as the state penitentiary from 1901 to 1981. The tour guide mentioned that at one point, the prison housed the most complete law library in the state. I don’t know if this bit of trivia is accurate, but it does raise an interesting topic: jailhouse lawyers.

The problem is this: Inmates have only limited access to legal assistance. Yes, they’re entitled to an attorney for their case but not for all appeals and not for other legal cases such as habeas corpus and civil lawsuits. Of course, they probably don’t have money to hire counsel for those cases. And while they can represent themselves, a large proportion of inmates are functionally illiterate, poorly educated, or have limited English skills, so they can’t realistically research and write about their legal issues.

As a result, jailhouse lawyers exist. These are inmates who are willing to provide legal help to other inmates. Almost none of them have law degrees, so they are largely self-taught. The courts have held that unless prisons provide reasonable alternatives, they must allow assistance from jailhouse lawyers. Furthermore, the prisons must allow adequate law libraries.

I think jailhouse lawyers could make a wonderful addition to a book. Maybe your hardened con redeems himself by struggling against all odds to prove someone else’s innocence or to improve prison conditions. If you’re considering this plot idea, this handbook might help.

Ineffective assistance

Last week I posted about the right of criminal defendants to be represented by counsel. Today I’m discussing a related matter—what if the defense lawyer sucks?

On the one hand, the case law is clear: defendants have the right to effective assistance. While this doesn’t mean the lawyer has to be a Clarence Darrow, it does mean she has to do her job competently. If she doesn’t, a conviction may be overturned.

Ah, but there’s a major caveat here. In order to make a claim of ineffective assistance of counsel, the defendant has to prove more than the lawyer’s incompetence. He also has to prove that, if it weren’t for her bad job, the outcome of the trial would have been different. This is called the Strickland test, named after the case in which the Supreme Court articulated it. In many cases, the test essentially means the defendant has to prove he’s innocent, which can be difficult even with a good lawyer.

Courts have upheld convictions in which the defense attorney was drunk at trial, was mentally ill and delusional, fell asleep during the trial, asked the defendant’s family for money to do DNA testing but kept the money and didn’t do the test.

I think ineffective assistance of counsel is an excellent and underused plot device. Imagine that your hero is innocent but gets a cruddy lawyer. Maybe that lawyer is even paid off by somebody to do a bad job? And now your hero has to prove he didn’t do it. Lovely!

Defense attorneys

Defense attorneys have been around, in one form or another, for centuries. Back in ancient Greece, for example, an accused person might hire an orator to speak at trial on his behalf. Back then, knowledge of the law wasn’t as important as an ability to sway the jury. Historically, though, England allowed defense attorneys only in misdemeanor cases, and then only if the defendants could pay for them. People accused of felonies could pay to consult with an attorney before the trial but had to argue on their own behalf in court. (Although victims could hire a prosecutor—there was no equivalent to the District Attorney—they rarely did so.) By the beginning of the 18th century, however, defense attorneys were having a more active part in criminal cases. And this timing is important, because that’s when much of Britain’s legal system was exported to what became the United States.

By the time the US Constitution was written, the right to counsel in criminal cases was considered important enough to be included in the 6th Amendment. But it wasn’t until the 1960s that the Supreme Court ruled that in all criminal cases—state and federal—in which the defendant might be imprisoned, he is entitled to counsel, and the government must provide an attorney for him is he can’t afford to pay for one himself. Approximately 70-80% of defendants are indigent and unable to afford an attorney on their own.

There are several systems by which defense attorneys can be administered, and the specifics vary with jurisdiction. Broadly speaking, most major metropolitan areas have a public defender’s office, in which the lawyers work full time for the government, providing defense counsel for indigent defendants. But in less populated areas, a system like that may make less sense. In those cases, lawyers in private practice may contract with the government to provide defense services for a set amount of time and money. Or the courts may assign specific attorneys in private practice to defend particular cases. Some jurisdictions use a combination of these systems. For example, they might have a public defender’s office but rely on contract or assigned lawyers if the caseloads get too heavy.

While the right to an attorney may seem pretty basic, it encompasses a lot of details. To which specific proceedings does it apply? When can it be waived? What are the rules with respect to what defense attorneys can and can’t do? What are the standards of quality for defense representation? All interesting questions for later posts. For now, a warning—if you have a defense attorney in your story, make sure you do your research and find out how your jurisdiction administers defense services.

Department names

A very quick post this week because once again I’m traveling.

My older daughter is binge-watching Dexter right now, and she asked me why Dexter works for the Miami Metro Police. Why the metro, she wanted to know.

Actually, the city of Miami calls its police the Miami Police Department, while the sheriff’s department for that region used to be called the Metro-Dade Police Department, but is now Miami-Dade Police Department. All of which is slightly confusing. The TV show’s creators seem to have used artistic license in merging the names, much as Reno 911! involved the fictional Reno Sheriff’s Department (in reality, there’s the Washoe County Sheriff and Reno Police).

But also this should be a lesson to authors to take care with department names, whether real or fictional. Agencies differ in nomenclature. Portland, Oregon, for instance, has the Portland Police Bureau. An interesting historical example involved 19th century New York City which, due to political conflict, ended up with two competing police departments: the New York Municipal Police and the New York Metropolitan Police. The competing agencies rioted with each other!

So, do your research and choose your department name carefully!


Female offenders

When I discuss offenders on this blog, I often use the male pronoun. This is a deliberate decision, a reflection of the fact that men make up a much larger proportion of offenders than women.

How big is this difference? About 83% of felony defendants in the United States are male. The difference is even larger for violent crimes, where men make up about 86% of violent offenders. Although the gap has been narrowing in recent years, the large majority of felony defendants are men.

There are also distinctions between male and female offenders. Compared to men, women felons are more likely to be HIV-positive, to have significant mental health problems, or to have been victims of physical and sexual abuse. They are also more likely to have abused drugs, and 70% of female prisoners have minor children. Compared to men, women are more likely to have been drawn into criminal activity by relatives, partners, and friends.

Because there are fewer female inmates, there is often a smaller range of prison programs available to them. On the good side, however, violence between female inmates is less common than among males, and gang activity is a less prevalent problem in women’s prisons. Here’s an article that outlines some of the specific challenges of female offenders.

Female offenders can make interesting literary characters. If you’re tempted, I’d urge you to do some research on the reality of female offending. You might even gain some plot ideas.