“I’m gonna win my habeas. I got me a Jew lawyer. He got a beanie and everything,” Soledad announced she strutted down the hallway.
“Yeah, don’t…don’t say that.”
“What?” she asked.
“It’s not a beanie. It’s a yarmulke. When you say ‘Jew lawyer’ it implies unkind things about Jewish people. ”
“Like what? That they be winnin’?” Soledad protested.
“I bet a number of people in here had attorneys who happened to be Jewish and…let’s just say, they ain’t winning,” I assured her.
Because they confront the greatest ignorance of all, I think the Jewish women have to be the loneliest group of inmates, if you can even call them a group. I’ve met a total of three while I’ve been incarcerated. Only two did a bid. Not only have they plunged into this utter dysfunction, other inmates reduce their spirituality and customs to the menorah and dreidel that popped up on the windows of their grade school classrooms in the spirit of equal time for “other” cultures.
Since then, because stereotypes operate most consistently and strenuously in populations that are stereotyped themselves, the only understanding of Judaism, of a religion whose story figures squarely into the narrative of oppression everyone in here is peddling, is that the only way the religion manifests itself is through alleged ruthless legal prowess.
We make a big deal of the history of American slavery as it pertains to corrections, calling it “The New Jim Crow.” Imagine being Jewish and being thrown in prison and having to confront what millions of your ancestors went through as they were processed through Hitler’s explicit agenda of annihilation. At least here we speak of reentry, another chance, eventual release. They lived condemned, all of them. If there were more Jews in prison, we’d be calling this “The New Dachau” but their minority status prevents better comparisons between the modern penitentiary and the Holocaust. I think that this country might have a chance at rapid reform if there were more Jewish inmates. I don’t wish this on them, but if Jewish inmates reached critical mass in here, historical comparisons would put legislators’ pedals to the metal. Of course, if I’m right, it only shows how racist the system is, because historical comparisons seem not to be motivating anyone to do much to make these places better. Just saying.
“What do you think of that?” I asked Cerise, an observant Jewish woman who also happened to be a lawyer.
“Jews are persecuted everywhere. Been that way throughout history. This is nothing to us,” she poo-pooed me.
Cerise explained that, in the Jewish faith, a Torah scroll – one that contains hundreds of thousands of letters – is rendered not kosher and unusable if even one letter is missing or broken and the same concept carries over to the Jewish people. If even one individual is forgotten or left behind, then the entire community is lacking and considered unKosher.
This Jewish worldview is lower-c catholic and accessible to all, but it’s a secret in here because all that matters about a person is how criminally useful he can be. The “Jew Lawyer” has gangsta value.
I had to deliver some milk to the control room and I spied Soledad in visits, coming out of one of the legal conference rooms with a man in a patka. In this environment of inverted diversity, my first thought was that it looked like a do-rag gone wrong.
Later I asked her:
“Soledad, who was that in visits with you?”
“He’s a Sikh.”
“Sneak?” Soledad asked.
“Well, probably, because they [lawyers] all are,” I conceded. “But that’s a patka, not a yarmulke. He’s a Sikh. It’s an Indian religion.”
“For real? Indians like the casinos?”
“No. Look, your lawyer’s not Jewish at all. For Christ’s sake, when I saw him there, I thought he was your shrink.”
“Why? That’s what them people [Sikhs] do?”
* Title means “smart person” in Yiddish.
THREE IDEAS IN JUSTICE REFORM FROM DECEMBER 4 – 10, 2017
Remember Reality Winner, the NSA employee who leaked documents related to Russia’s attempts to feel out its ability to hack American voting machines? Her trial is shaping up to look like mine: a total zoo. The Intercept (click here for link) covered the pretrial proceedings. She’s basically being prevented from defending herself.
Here’s (click for link) a good New York Times editorial on how the Governor of New York has to be careful – and has tremendous power to cull abuse from correctional facilities – in negotiating a new contract with the prison guards’ union.
The Bureau of Justice Statistics released a new study Thursday, Criminal Victimization in2016 (click for link), employing a new methodology designed to more accurately reflect crime at its most local level. But the new model produced such erratic results — such high levels of crimes in certain counties, for examples — that officials quickly cautioned against actually using the data. Sounds like money well spent.
“They made him a lieutenant? What kinda shit is that?”
If I’ve heard it once, then I’ve heard it 200 times since you got your double-bars. Very few inmates expected you to snag a promotion. I certainly didn’t expect it when you walked into Food Prep that Friday morning with your name stitched in yellow thread instead of white, the sign of correctional ascension. After mulling it over for a long time, I’ve decided that your becoming a lieutenant is a good thing. No, it’s a very good thing.
I used to say: “I don’t think he would do that.”
Then it went to: “That doesn’t really sound like him.”
Then it was: “Okay, he probably did, but what do you want me to do about it?”
Finally, I would protest: “Just don’t tell me what he did” when other inmates would describe your wacky games and outrageous stunts. Supposedly denying someone a regular meal and giving her just a few chicken cubes for lunch. Calling women “fat pigs” and telling them they need fewer carbs. Screaming at them to “SHUT THE FUCK UP” as if you take your own advice.
I’ve been particularly offended the way you treated me. Do you think I don’t know that it was you and Booz who took my FBI file, the one I fought to get for my defense? I lost all respect for you. You act like a frat boy in here – and you’re at work, I might add, so that’s pathetic – except it’s pretty much agreed upon in here that no organization would accept you as a pledge given how you’ve behind recently. Except the DOC. That’s why you’re here.
You used to be kind, merciful, wise and calm to the inmates in South Dorm. I had been here less than six months and I knew how you guys kick around the newbies. I was scared of some of them but I wasn’t scared of you. Until later.
Losing respect for someone is no fun for any rational person. I know that other inmates never hide their glee at another’s failures or misfortunes, but I try not to get that way. Seeing you denigrate women who you thought were weak, me included, made me furious and sad. Now that I see you with Lieutenant bars on your lapel I know why. It wasn’t so much the personal attacks or the rumors you spread about me or even sending your friends to harass me, it was the fact that you disappointed me. When you have respect for someone and how they do their job – which I admit is thankless and unenviable – that I didn’t like the way disappointment felt because it meant I might be wrong, that the anthropologist’s eye I’ve cast on this place has a cataract.
No matter how bad my vision is, I can catch things from my vantage point that you can’t. I take field notes every day, including a list of my cellmates who come back. It’s getting long now, that list, because women love to return to abusers. I watched you be very kind to two women. They weren’t cute. Weren’t flirting with you. Offered you nothing but their pain and fucked-up-ness and you handled it.
I’ve been here five years and neither has come back.
Sure, outstanding warrants may have chased them out of state or they might have died, or they might have been treated well enough by someone in this place that they felt the confidence to make different, better decisions. I doubt they said: Frisky was nice to me, so I’ll be good. But I choose to believe that how you treated them contributed to their doing right.
A myth of modern corrections is that the only way to cause an attitude shift is a shove. But it doesn’t. Sometime the shift turns on a nudge, a subtle prod or even an accidental tap. These nudges might just be your (old) way of doing business, but they also shaved a couple of points off the return rate. Like I said, I choose to believe that you are solely responsible for that benefit to society. You have it in you.
But that’s not the only reason I have decided that your promotion is a good thing. It’s no secret that allegations of misconduct, childish pranks, and generally prickish treatment have been lobbed at you. If all of them were true, they’d need a wheelbarrow to move your personnel file from all your reprimands. I know everything isn’t true. But I also know – and you know – that some of it is. But someone – and I have no idea who because I know nothing about the DOC promotion process – looked past all of that and spied some potential in you. Sure, other inmates can describe your advancement as symptomatic of the dysfunction of this place, but it can also be an example of reform and redemption. You’re a lieutenant and a lesson, as far as I am concerned.
I’d congratulate you if I knew that your friends wouldn’t sack me, crush my face against a craggy concrete wall, cuff me and chuck me into a dungeon like they usually do for you.
I think it’s stupid that I can’t tell you this directly, that the bullshit between us made a pile too high and too wide for either of us to get around. I should be able say “Peace” to you and end this, but the risk for misinterpretation is too high. I can’t say anything to you, even if it’s nice, not that I’ve been that motivated to do so these past years. I’ll accept some blame for this, but it’s a noose I’m not willing to loosen on you entirely. You need to admit to yourself that your behavior towards someone who has far less power is despicable. It’s also foolish because I’m not serving a life sentence. You’ve given me the story of a lifetime to tell when I leave here. And if I do, what will you say to me then?
I bet if anyone ever heard me say this, they’d be so shocked that their fight-or-flight responses were activated. Captains in Building 6 would clutch their chests with angina, maybe even stroke out. The warden would be feeling around his desk for a brown paper bag to help him stop heaving in hyperventilation.
But I am serious. Congratulations. I hope nothing but justified success awaits you. Rise. Become a captain. Become a warden. But most of all become good again, how you used to be. It’s on everyone’s agenda in here.
P.S. I think you need to call your union steward about this place getting you a new, clean dumpster to jump out of. Since your promotion, you shouldn’t have to climb into dirty dumpsters anymore. A filthy can for a lieutenant? That’s abuse.
THREE IDEAS IN JUSTICE REFORM FROM NOVEMBER 27 – DECEMBER 3, 2017
I don’t know if you heard, but President Trump’s former national security adviser, Michael T. Flynn, pleaded guilty on Friday to lying to the F.B.I. about conversations with the Russian ambassador last December.
Here are three ideas on why Michael Flynn was charged with and pleaded guilty to only one criminal charge.
First: It may be all that Mueller et al. have. Doubtful, but a possibility.
Second: It’s just a sweet deal because Flynn is ponying up so much evidence against other people.
Third: Deciding not to charge Flynn with more crimes avoids the double jeopardy trap for state charges in case President Trump pardons him. Lying to the FBI is s strictly federal charge, so if Trump pardons Flynn, no state can bring those charges regardless of a pardon; it’s not a loss to forfeit a chance at a prosecution that you never had. But if Flynn were charged with conspiracy under federal law and subsequently received a pardon, conspiracy charges could not be brought at the state level because they’d be precluded by the double jeopardy clause.
My guess is – and I could be totally wrong – that charging Flynn with conspiracy is going to be left to a possible state prosecution in the event that the case against Flynn somehow goes south, pardon or lack of cooperation. Federal courts and many states have laws that allow co-conspirators to testify against each other without corroboration and as an exception to the Hearsay Rule; conspiracy cases are relatively easy to make with accomplice testimony. State prosecutions of conspiracy charges against Flynn would exceed Trump’s pardon reach. It may need to come to that for Special Prosecutor Robert Mueller’s team to see their goal to fruition, even if it is though a state prosecutor’s office.
GUARD: Bozelko, you use the word ‘guards’ in one a them things you wrote?
INMATE BOZELKO: Uhhh. I don’t know. Maybe. Probably.
GUARD: I can’t believe you called us that.
INMATE BOZELKO: Called you what?
INMATE BOZELKO: That’s an insult?
GUARD: Yeah, it’s an insult.
INMATE BOZELKO: How? You’re guarding us in here.
GUARD: It’s like the difference between a trained professional and someone who doesn’t know what they’re doing. You’re, like, callin’ us rent-a-cops.
INMATE BOZELKO: Did I say you don’t know what you’re doing?
GUARD: Yeah, but in something else you wrote.
INMATE BOZELKO: Okay. Yeah. Probably. But that’s not what I meant when I said ‘guard.’ I just meant someone who works here.
GUARD: How would you like it if I called you ‘inmate’ or ‘convict’?
INMATE BOZELKO: Um, I have two responses to that. First is that you do. “Inmate Bozelko, this,” and “Inmate Bozelko, that” is all I hear all day. And second is that I hardly care. I’m here, aren’t I? So what’s wrong with being called an inmate when you’re in jail?
GUARD: Some of you wanna be called ‘residents’ or ‘clients’ or some shit.
INMATE BOZELKO: We are residents so ‘resident’ is the same as ‘inmate’ for me – accurate. ‘Client’ is bullshit because it implies a consensual contract between parties. But that’s other people asking for you that, not me. Call me whatever you want – you already do. Can I ask you, like, what do you think you should be called?
GUARD: Officers. Officers of the court and law enforcement officers.
INMATE BOZELKO: Officers of the court…that’s like lawyers, so no. And law enforcement officers are cops, detectives. They have guns. You guys have pens. So still no. All due respect.
GUARD: We’re trained professionals. We’re like doctors.
INMATE BOZELKO: Well, you attend training, which doesn’t have to mean ‘trained.’ But doctors take an oath to do no harm and, well, we’re beyond that. See how [Correction Officer] Moore over there is tugging on the other end of the cart that she’s [the disabled inmate’s] trying to pull? And how she’s looking to see what’s wrong with the wheels because he’s hiding from her as he’s preventing her from moving? See how she’s confounded?
GUARD: What’s ‘confounded’?
INMATE BOZELKO: Confused. See, that’s a prank. That’s not essential to safety and security. In fact, it’s a threat to it. You’re not trained to do that and, if you are, it’s not professional. You guys are guards. All due respect.
GUARD: Not fair to put me with somebody who’s fuckin’ up.
INMATE BOZELKO: Now you know how I feel. Thus are the dangers of human classification. All you can do is ‘do you’ and hope someone notices that you’re not like the rest.
GUARD: You still don’t need to call us that.
INMATE BOZELKO: Okay. I’ll call you microsurgeons then. You like that? Microsurgeons?
GUARD: Why you gotta say ‘micro’?
THREE IDEAS IN CRIMINAL JUSTICE FROM NOVEMBER 20 – 26, 2017
Now that Charles Manson is deceased, people have spent the last week trying to humanize him. No one is trying to humanize the women he induced to murder, women like Patricia Krenwinkel, currently California’s longest serving female prisoner, who’s been denied parole 13 times despite being a model prisoner; or Leslie Van Houtem, who has also been described as a model prisoner during her time behind bars. Last year, California Gov. Jerry Brown overturned a parole board recommendation last year that she be released, with Brown saying she still posed an “unreasonable danger to society”; or Susan Atkins, the third member of the twisted sorority that was dubbed “Charlie’s Girls,” and the first member of the cult to die behind bars in 2009. She was 61. She was denied parole 18 times.
I’m not opposed to humanization of anyone, but let’s stop pretending that the Manson story is unique. Manson-type stories play out daily in every female prison where women are doing time for crimes they never would have considered were they not convinced to commit them by some dude. There are “Charlie’s Girls” everywhere and no one gives much of a shit about any of them.
The Rev. Al Sharpton announced that he will go visit rapper Meek Mill in prison, like that’s going to clean up Meek’s mess. I’m almost glad that Mill went to prison on a probation violation because it would take a celebrity screw-job to open the conversation that a sentence of probation isn’t “getting off” like people think it is. You can be sentenced to a term of supervision by a judge who engages in misconduct – asking for a “shout-out” in a remake of Boyz II Men’s “On Bended Knee” – and wants you to be the one who bears punishment for it. Don’t get me wrong: Mill violated probation, but his offense paled in comparison to the judge’s. If you haven’t paid attention to this story, namely what Philadelphia Common Pleas Court Judge Genece Brinkley did, start following now. If she’s allowed to continue to sit on the bench, there’s no hope for this system, “reformed” or not.
Incarcerated women are NINE TIMES MORE LIKELY to be HIV-positive than non-incarcerated women, according to recent numbers from the Bureau of Justice Statistics. Everyone’s chalking this up to intravenous drug use but I think a bigger proportion than we expect is attributable to childhood sexual abuse where the perpetrator infected his victim.
Thousands of white sylph pieces pack a Lucite bin in Main Dining. One of the supervisors always puts it away before a meal and drags it back out after. It doesn’t make sense.
On my first holiday in the kitchen, I finished my baptism-by-oven heat of packing hundreds of Thanksgiving meals into Styrofoam trays and delivering them to the women who weren’t allowed to eat with everyone else because they were sick, or new, or relegated to solitary confinement. For the rest of the workers on the line, I plotted how we would fit turkey, gravy, green beans, potatoes, stuffing, bread, cranberry sauce and pumpkin pie into a tray with only three sections to it by drawing schematics over and over again.
We can’t put the gravy in the big section if the pie is there. But if the pie is by itself in one of the three, we’ll have to put the potatoes, turkey, stuffing – and gravy over all three – in the big section. Green beans in a small section. Pie in the other small section over the cranberry sauce.
In my drawn instructions, potatoes were the round mound, stuffing the wave mound and the beans were a pile of sticks and they effectively guided the ladies I worked with to get the trays right; no one bitched that her pie was gravy-drenched. So I was feeling a bit bold. I asked the supervisor who hides the nappies when he scurried into the back with the tub of them:
“Can we leave those out? You know, for the meal?”
“No one wipes their mouth in here.”
He nailed that.
“It’s Thanksgiving. Maybe someone wants to put one on their lap.”
“Lap?…How long have you been here?”
“Two years in December.”
“Nobody here puts a napkin on their mouth, okay? They definitely don’t put it on their laps. They put it in their pants, wrapped around something they’re not supposed to have. They use it to boost shit outta here. The best case I can hope for is that they just let the napkin alone and let it fall on the floor where you guys bitch about sweepin’ em up before you mop. That’s why I don’t put ’em out.”
“Then why do we buy them and put them in a big bin? If there’s no chance they’ll be offered, why waste the money?” I queried. It had to be asked.
“Cuz it’s fuckin’ DOC [Department of Correction].”
I’ve long asked why there isn’t an etiquette training program here, a mandatory one. I’m not talking about fish knives and copies of Tiffany’s Table Manners for Children – we can’t tackle those topics if we’re stuck with one serving-cum-eating platter and a spork – I’m talking about appropriately firm handshakes, napkins on your lap, not commenting on the acne on the face of your conversation partner.
The best manners come out when you have to deal with others who don’t have any. That advice works only when you know what bad manners are and that’s rare in here. Most of the inmates call manners “home training” which makes it sound like social grace is a work-from-home scam or Ikea assembly instructions. Sometimes I think the reason why wealthier, more educated defendants fare better than their indigent, undereducated counterparts isn’t a prejudice by courts but a fact that their manners are better. They nod appropriately at the judge. Sit up straight next to their lawyers. Others look down, grumble, fumble because they don’t know any better and they get read as disrespectful, incorrigible. Bye.
Not one teacher or administrator takes me seriously when I mention an etiquette program, but what are manners besides how you interact with others? They’re really the core of rehabilitation, an educational system that is far more personal than any academic curriculum. Of course, there is some protective effect of being ill-mannered. You can’t be a an elite-level con artist if you’re not smooth.
I’ve seen my manners deteriorate in here because there’s no peer pressure to keep them up. Thanksgiving buoys them because I insist on proper table etiquette for that day alone. It reminds me of how my mother would dispatch me and my sisters to set the table and decide how we would fold napkins would fold. Roses. Simple triangles. I don’t have those choices anymore.
“Happy Thanksgiving. Can I get a napkin?” I ask whomever is working behind the serving line every year. No matter who it is, he or she always replies:
“Happy Thanksgiving, Ms. Bozelko. For you, sure,” as the supervisor hands me a small wad of soft pulp.
Once I reach the table with my tray, I spread out the one-ply like I have for the last four Thanksgivings – I never got a napkin before I worked in the kitchen – into a sheer, white scarf across my lap.
“Ohhh, shit. I see what you doin’,” someone at my six-man stainless steel rectangle said when she spied my serviette.
“You do? Do you want one? I have a few more.” I held up a napkin for her.
“Nah. You finally getting ready to fix yourself a real meal back in ya cell wit’ chow hall food. I see. I see what you doin’ Ma. That stuffin’ is blazin’ in a [ramen] soup. That’s why I be puttin’ my shit up in a bag,” she said, pulling a small translucent baggie out of her pocket. “I don’t need no napkin.”
The title of the post may have confused you. It’s the lyrics and title of a song by Chiddy Bang. Read them here.
THREE IDEAS IN JUSTICE FROM NOVEMBER 13 – 19, 2017
Prisoners in Texas get etiquette lessons, as this story from last week reports. Colleen Rickenbacher, above, teaches etiquette and manners to male inmates at the Cleveland Correctional Center in Texas. Through the class, the students also develop post-incarceration employment and business plans, most likely because someone who oversees that particular facility sees the connection between success and navigating social situations politely.
Not one but two corruption trials ended in mistrials last Thursday. Both the Democratic Senator from New Jersey, Robert Menendez, and the New York Correction Officers’ Benevolent Association former president, Norman Seabrook, walked out of their trials in little better shape than when they went in. But the prosecutors were in worse shape because these hung juries are part of a larger pattern of losses in corruption cases. As much as I would like to blame this on prosecutorial incompetence because you can’t enter a criminal courtroom without seeing them bumble about, this isn’t the prosecution’s fault in either case. Criminal corruption statutes have been defanged for so long that it’s hard to get a public official convicted of any malfeasance. Read why here.
It’s bad enough that we allow state-sanctioned murder in the form of the death penalty. It’s worse that we don’t know how to pull it off our societal sin. The State of Ohio tried to execute Alva Campbell on Wednesday and failed when execution workers couldn’t find a vein. Liliana Segura did some fine reporting on the event for The Intercepthere.
Again, I’ve been moved, tossed from one tier to another. I spent the first few hours in my new cage overly focused on unpacking my belongings from a trash bag and folding my mattress like a taco so I could tie ends of the sheet around it because, apparently, those Pratesi fitted jobs my mother covets are a luxury, totally unnecessary because you can knot the corners of a flat sheet underneath your mattress and sleep on that huge cotton bolus, Princess and the Pea-style.
My new cellmate got here a few months before I did, when she was 19. Now she’s 23. As I was folding, tying, tightening, pressing, I heard something about being born here at York to a mother who had since passed away, pro forma foster care with older couple who couldn’t handle her, placement in a group home for troubled teens.
“…and this guy who worked at the group home, he…I had sex with him so I could get Nerds.”
Did I just hear sex and candy?
“His girlfriend worked there too and she snitched on us. Cuz she’s jealous. She wanted him to be walked off [fired] just to get him for cheating on her. She even called the fuckin’ cops. Cuz jealous bitches are dirty like that.”
“This was when you were in a group home? How old were you?” Weren’t you like, seven, yesterday?
“Oh God. I’m sorry.”
“I wanted the Nerds. And I wanted to fuck him.”
“Did he get arrested?” I wanted to know. Do I need to start writing letters about this menace to make sure he’s not still working with kids?
“Yeah, it was in the paper.”
“Was your name in the paper?”
“Nah. I was a minor,” she answered, revealing that she knows enough about rules and law and – especially – her status in every situation she finds.
“I mean, I’m not telling you any secret. I tell everyone here. The C/O’s know, everyone knows that I got this guy walked off because I fucked him. So that’s why the staff doesn’t like me. You need to know that if you’re gonna live with me.”
“Well, they’re not crazy about me either, so no problem. But you know you weren’t wrong in that situation, right?”
“I was bugging him for the Nerds.”
“Yeah, but it’s just a hard-and-fast rule that guys aren’t supposed to fuck 12-year-olds anywhere, for any reason, even if the 12-year-old wants it.”
“I liked him. I wanted to fuck him. So I let him fuck me against a wall in a closet.”
“Well, since he’s the adult he had to let you down. Not only that, he could’ve given you the Nerds for free. That was always an option.”
“He told me girls my age get married and fuck their husbands in far away places like India and Kentucky,” explaining the grooming method he used, equating Kentucky with a third world country. He wasn’t 100% wrong about that, but what a substitute for social studies. Molestation fills in for normal pre-teen activities yet again.
I don’t know if I will ever be able to explain how fascinating and repulsive the combination of eroticism and childhood sweets was that day. Guilt and shame swirled and marbled her street sass. When he hollowed out her self-esteem by letting her gulp a box of Nerds she bartered sex to get, he drained all judgment from this girl. It was her fault that she wanted someone to commit a mundane, innocuous act between adult and child, one that’s happened millions of times daily since the discovery of sugar cane – gifting a piece of candy – and The Candy Man hijacked it into a situation where he could get a piece of ass. In a closet. Standing up. With a kid.
Prison life is like a cross of Ad-Libs and the board game Clue. You start the adventure by filling the blanks of an erstwhile normal story with zany adjectives and nouns – Plural Noun? Nerds! Flat sheets! Verb? Molest! – and then spend the rest of the time deciphering why the story you just wrote yourself actually happened and who the real guilty party is.
My first few days living with her taught me that the group home incident wasn’t the only reason why the staff had a problem with her. She’s walking trouble: talking back to some staff, flirting with others. Drama in relationships with the other inmates, trading commissary as ruthlessly as anyone who ran with Pablo Escobar. She reports to our room repeating directives from her ‘mom’ – a Latina woman from Rhode Island who’s doing LWOP [Life Without Parole] for 2 execution-style murders – who advises her on all things moral, ethical, culinary and correctional. Only 84 hours of celling with her have exhausted me, yet I have to admit that I hold her pretty blameless for all of it. I’m shocked that anyone thought her story was going to end differently.
When we walked out for dinner tonight, she was behind me on the walkway and a C/O slithered out of the guards’ shack in Yard 1. The ratt-tatt-tatter of small sugar pieces against cardboard twisted my head to catch him in November dusk, shaking a box of Nerds at her. I turned back around and kept walking but she
THREE IDEAS IN JUSTICE REFORM
FROM NOVEMBER 6 – 12, 2017
Tell me how ideas related to criminal justice didn’t permeate last week’s election. And I will counter with these developments:
In Virginia, the election of Democratic candidate Ralph Northam means ex-offenders are not going to lose the voting rights restored to them in April.
Also in Virginia, prosecutor who ran on a platform of police accountability was re-elected.
In New Jersey, the governor-elect proposes to legalize marijuana, which Gov. Chris Christie has opposed.
In Philadelphia, despite huge opposition from police unions, former public defender Larry Krasner switched sides, being elected district attorney.
In New York, voters approved ballot measure that will prevent elected public officials convicted of felonies related to their work from collecting their pensions.
Prosecutors aren’t even required to believe the theories and evidence they present to juries. The Marshall Project‘s Ken Armstrong and The New Yorker ran an important story – a typically New Yorker-length examination of how this really happens and innocent people go to prison – and WaPo’s Radley Balko broke it down for us here.
And, because there are so many criminal justice topics to plunder from the Roy Moore story – the fact that it was revealed last week that the former Alabama Supreme Court Justice and current Republican Senate candidate probably had inappropriate sexual contact with underage girls as young as 14 years old – I have to choose just one aspect of the torrid tale to focus on. The fact that we’ve normalized having sex with little girls – and boys – is why we have our national mass incarceration crisis right now. Not only has Roy Moore likely committed a crime, but he (and men who act like him) have enabled countless crimes to be committed by their victims. It all leads back to childhood sexual abuse, ladies and gentlemen. All. Of. It.
“You seen? We got a black man as president,” Terri asked me as she was waiting for the C/O to unlock the door of the tier remotely. Most inmates get election results well after the general public since they lock up in their cells – and away from communal TV’s – before the last results are announced.
“Yeah, I heard on the radio. I mean, in January we will,” I explained.
“Obama’s not president yet. He was only elected. That’s why call him ‘President-elect.’ The election doesn’t make you president. It just chooses whogoes through the process of becoming president in January.”
“No matter. He gettin’ us out,” Terri told me with one decisive nod.
“Oh no, he…he has no jurisdiction over state crimes, so he can’t.”
“A black man is president,” Terri said, pressing her index finger and thumb together and pushing them toward me in that what-don’t-you-get gesture. “He’s gonna free the slaves and we outta this bitch.”
Sixteen years ago, four presidential terms ago, I was walking behind Witherspoon Hall to class, happy that [Bill] Clinton won the election. He went on to create a criminal culture where everyone who got arrested went to jail for a long fucking time. Fifteen years after I voted for the Comeback Kid and he swung the election, that tough-on-crime shit he allowed trickled down to me and I’m here, giving basic civics lessons to people because he didn’t shore up education spending like he should have. You never really understand how you can become the law’s landing strip until it touches down on you. And runs your ass over.
Congress and [President] Bush passed the Second Chance Act a little over six months ago – right after I didn’t get a first chance – so they’ve started doing something. Maybe Terri’s right. Maybe Obama will finish it. Maybe we are outta this bitch with Barack up in the Oval. It’s funny how disempowered people finally have hope just because the man in charge is black. Is that all it takes?
THREE IDEAS IN CRIMINAL JUSTICE FROM OCTOBER 30 – NOVEMBER 5, 2017
↑↑↑↑ Last week = the one time I’ve sided with the prosecution and cheered them on. ↑↑↑↑
And there are too many juicy criminal justice topics in this Manafort indictment mess.
Former Trump campaign manager Paul Manafort’s business partner and indicted co-conspirator in laundering millions of dollars, Rick Gates, was represented by a public defender because his attorney wasn’t there (because he hadn’t been hired). One of the burdens on public defense systems is being the stand-in until wealthier defendants retain counsel. Of course, they don’t have to investigate or draft any motions for these clients (not that they do that for their poor, qualifying clients) but hours of public defense time is spent standing next to for defendants because judges fear having anyone without an attorney next to them, even if that lawyer does nothing. Contrast this with the fact that, last week, a Louisiana Supreme Court refused to hear a case and a concurring opinion actually found that a suspect who said “Get me a lawyer, dawg” to police didn’t ask for counsel; instead Warren Demesne asked for a “lawyer dog” – like Tulane Law has a night school program for pugs who then get admitted to the Louisiana Bar. If the lawyer were a public defender, I hate to break it to you; he’d have been better off with the dog.
Your lawyer can take the stand against you if you lie to her and she passes the lie to the prosecution. It’s the crime-fraud exception to attorney-client privilege (e.g. you can tell your attorney which banks you robbed but you can’t confer with her on which branch should be next) and Mueller et al. made sure Paul Manafort’s lawyer was required to take the stand and testify last week because they’re sure he’s taking the adage that ‘the law is a shield, not a sword’ to an extreme to get his hired legal help to peddle his bullshit for him. Using the crime-fraud exception was strategic, not in terms of prosecuting Manafort, but in warning all of the high-priced lawyers who will accompany their clients to upcoming interviews with the Mueller team (no one’s coming in alone like they do in the movies) that passing on a client’s lies won’t fly in this investigation.
File this one under “Don’t push it.” Manafort offered to put up close to $12 million in assets to avoid house arrest. With aliases, multiple passports, places to land overseas and a bunch of money that even the government says it can’t track, he was lucky to get house arrest in the first place. My guess? If they cut him loose off the bracelet, then it isn’t because of any way in which he secured his bond. He’s cooperating.
CTO Walters’ dedication to public service led him to make another announcement over the intercom before he headed out for the Halloween weekend. I was sitting in my cell and heard it on the overhead speakers.
“I will come in on Monday and check the tapes and see if anyone was parading around in costumes and if I see one of you with anything on ya’ll’s heads, you will all go to seg for 30 days. No stopping on the Boardwalk or Madison Avenue, you’re all going to seg[regation],” he warned in his Southern twang.
“I think that was a Monopoly reference,” I said out loud, to myself, alone in the cell, and heard from the rec area:
“Princeton, you gotta help us.”
Three women were panting at my door at the news, their frenzied speech buffered by the cell door. For some reason, it’s impossible to hear someone when they’re right outside your cell door, but they’re crystal clear when they’re down the hall. Walk into any housing unit and you’ll find at least one woman who’s practically kissing a doorjamb. Another woman’s inside doing the same thing, just like I was.
“What happened?” I asked.
“Didn’t you just hear that? Motherfucker says he gonna put all us in the box if we dress up on Saturday. We got the party and all.”
“What that got to do with me?” I’ve found that, sometimes, I can communicate better in here when I speak in song lyrics.
“He can’t do that, put people in seg when they didn’t do nothin’?
“You’ve been here longer than I have and multiple times. You ever gone to seg for nothing?” I asked.
“Yeah, um, I was on the walkway, see and…”
“No, I don’t need to hear what happened. Costumes violate the rules but, even if they didn’t, they can do whatever they want. And they do. And you know that.”
“So I can’t tell you whether he will check the video and put you in seg. Seems extreme, but who knows? If he does he can get you for hiding your identity or a flagrant [disobedience].”
“But I made cat ears and Regina crocheted a leprechaun hat,”Allie wined through the steel frame of my exit and bounced like a disgruntled child. “What’s wrong with a costume?”
“Well, we’re in prison.” It’s the catch-all explanation for everything here, mostly because it must be. Women think that every legal thing they did on the outside flies inside. It doesn’t. It can’t.
“Weigh it out. Is it worth going to seg for you to wear these yarn ears? If so, go for it. If not, abstain,” I advised to the crack of the door.
“What’s that mean?” I paused for a moment to consider this moment, one I definitely won’t forget. Self-restraint is foreign in here. No one has ever taught many women in here the concept that they can foregosomething risky, even downright dangerous, as a form of future self-preservation. Even less likely is the prospect that has someone recommended this type of decision-making.
It comes across as entitlement – I can break rules and avoid consequences – but it’s really just a lack of knowledge, of training. I don’t know if it would be futile to start explaining those concepts now or whether they’re here exactly to get that lesson. And if they are, I don’t know that I’m the one to dispense it. After all, I am wise about this because I don’t give a shit about this little Halloween soiree. Maybe if I had something I cared about on the line, I’d get a little daring myself. I’m pretty sure I’ve done it in the past.
“Listen, we’ve all worn masks our whole lives and a costume since we got here. It won’t kill you not to be extra extra for just one day,” I told them. Final answer.
They ain’t tryin’ to hear that.
THREE IDEAS IN JUSTICE REFORM FROM OCTOBER 23 – 29, 2017
Hopefully, by the time you’re reading this, we will knowwho’sabout to take a collar in Special Prosecutor Robert Mueller’s investigation. And so it begins.
Two Bronx public defenders wrote original commentary for The Marshall Project highlighting a new study that I hadn’t seen when it came out. Racial disparities in plea-bargaining outcomes are greater in cases involving misdemeanors and low-level crimes; being accused of major crimes evened out plea bargain outcomes. Also, white defendants with no criminal history usually received reduced sentences (all except me) but black and white defendants with criminal records were treated similarly.
Here’s where criminal justice reform makes no sense. The main gripe with mandatory minimum sentencing laws is that they strip judges of discretion in sentencing. Then reformers push risk assessment tools that also strip judges of discretion. It seems to me like any inroads made into eradicating mandatory minimum sentences get erased with these computer programs. Read this oped in The New York Times by a former Facebook engineer/Harvard Law student to understand why these tools can be dangerous.
You have a call from…Chandra… an inmate at York Correctional Institution. This call may be monitored and/or recorded. You may start your conversation now.
“Chan? Happy Birthday,” my father said.
“I talked to the warden, you know, about your mail delay, and he said your mail is probably delayed because you’ve been moved 37 times.”
“Is that true?”
“Hal-owe. Happy birth-day!” It was my mother, intervening. My father probably waved her over to another extension. It wasn’t uncommon for my parents to sit two yards from each other, talking to the same person on the phone, each on different receivers.
“Hi. What is happening? They’re putting you all over the place?” she asked.
“Daddy said they moved you 37 times.”
“Yeah, I guess.”
“Oh, that’s terrible. This is terrible,” she said and sighed.
“They’ve moved you 37 times in a little over five years?” my father inquired, on a cross-ex.
“Yes. But every time I go to seg, that’s two moves, you know. One in; one out. Maybe three, if I land in 3-South first.”
“And how many times have you been to seg?” he asked, even though he knew.
“Well, then, let me ask you this, Chan.” That’s Ronald Bozelkoish for You’re not making any sense. “What happened in the other 25 moves? When you didn’t go to seg.”
“Umm, I moved. One regular unit to another.”
“This is absolutely absurd. So they move you every other month? Is that what you’re telling me? And this has been going on from the beginning?” Ronald was demanding information for an action plan.
“Well, except for the moves inside the unit.”
“What is that?” He needed to check.
“Like when they move you from one cell to another inside a unit. You stay in the same building. Or half of the building,” I explained.
“How many of those?” my father asked.
“I dunno. Two or three for most of the units.”
“You’re fucking kidding me.”
“No,” I said. I wasn’t.
“Why didn’t you tell me this was happening to you?” my mother asked.
“That I was getting moved? Why?”
“Because we would have done something about it,” she explained, exasperated.
“‘Cuz it didn’t occur to me. I just want my mail on-time.”
“But that won’t happen if they keep moving you like they are, okay?” my father explained. “When did they move you last?”
“Today?! On your birthday?” My mother was horrified.
“Where are you now?” my father asked like he was a 911 operator trying to ascertain the location of an emergency.
“I’m still here, in the prison. I’m in One North again.”
“What is One North? What is that about?” came from my mother and “Where were you before?” came from my father.
“We need to stop this,” came in unison.
“Well, I have only, what? Eight months left? How are we gonna stop it now?”
I am getting far too pragmatic.
I always hated moving in here. You stay at the same address you just get filed under another number. More than anything else that can happen in this facility, moving cells made me feel like we’re chattel, like we had to be stored in a different container. Where we would be could change, but we always, always had to be stored somewhere. It was burdensome organizing for the staff, like they had to find somewhere to stuff us.
I never realized that I might hate the moves because the staff has gone pretty far to make me miserable with them. Normally, operations [administration] will move you only if you’re in the prison, i.e. not at court or an off-grounds medical appointment, and only during first shift. Unless its an emergency in the cell, like when my toilet started flushing non-stop without anyone’s using it and they moved me and my roommate to another building at night, you’ll be moved before 2 PM.
Unless you’re me, anyway. After a week in court during a week of snow and other delays (meaning I had about 10 hours of sleep for the week, aggregate) they moved me once at night – which is unheard of, unless there’s an emergency. But there was none that night and there was every reason to let me stay where I was.
Paralyzed by fatigue, I couldn’t even carry my stuff anymore and the C/O picked up my bags and carried them for me. They’re not allowed to do that and I was so grateful to him that I didn’t even say anything a few months later when he threw a roll of silver duct tape straight into my face. When I was on the phone. That was when I lived in One North another time, about 20 moves ago.
Moving is a security thing in every prison; they like to mix things up so no one gets too comfortable where they are, has time in one place to dig out a Shawshank tunnel. But what happened to me is excessive and I, in my mind the smartest person at this address, didn’t even catch it even though other long-term inmates move about a third as often as I do and average inmates move about a fifth as often as I do. As much as I complain about this place, somehow I missed the fact what was happening to me wasn’t right. I’m actually pretty good about feeling slights and bitching about them, too good at it maybe. But I miss the real stuff hunting for the piddly offenses or ways to get a reaction from people. If I just understood and mourned some of the things I’ve suffered for what they are, I’d probably calm down.
I remember when I had to meet with the eleventy-billionth shrink and she went through my file.
“So you know that this is abuse?” she asked, talking about every possible psychiatric intervention that had been foisted upon me.
“Well, it’s more just family dysfunction,” I half-agreed, amiably, so I’d be allowed to leave.
“Okay, but it’s also abuse,” she said.
“I mean, I guess. But not really. My parents love me, I know that.”
“Love doesn’t force,” she told me. I never thought about it that way. I’ve loved many people, things, situations and always thought I could force more out of them with threats and generally bad behavior. I was never forced to go back to that doctor and I always wondered why.
After that birthday call, I’ve decided that the cycle of abuse isn’t propelled by anger. The fact that ‘hurt people hurt people’ isn’t because they are in pain so they make a conscious decision to share the torturous wealth. Abuse is fueled by ignorance. People don’t know what constitutes abuse; that’s why they so easily pass it to others. I’ve reached 41 years of life and I still don’t know all the ways I’ve been abused and all the ways I’ve abused many people. I simply never knew what I was doing or what was being done to me. It’s not an excuse; it’s a fact. Because so many women get moved here every day (especially me), it didn’t really occur to me that these moves might be another form of mistreatment. It felt that way, but every allegedly legit thing that’s been done to me felt the same. I didn’t even know.
Every worker, when she checks in for work in the morning, has to report her housing unit.
“Ms. Bozelko, thank you. Zero-South,” NY Giants said as he placed a deliberate check mark next to my name on the roster the next morning.
“No, it’s One North.”
“They moved you again? Oh boy.”
“Yeah, I guess it’s happening again,” I told him and went to put on my boots. And as I slid on the chunky black rubber and started to think about how much abuse, incoming and outgoing, I never recognized, I didn’t know that no one would ever move me in that facility again. I couldn’t yet see how, even subtly, just acknowledging abuse stops the cycle.
THREE IDEAS IN JUSTICE REFORM FROM OCTOBER 16 -22, 2017
As part of the organization’s “Whole Pie” series, the Prison Policy Initiative conducted the first formal count of incarcerated women in the country. It turns out that 15% of incarcerated women – around 30,000 of them – are sentenced but live in jails, not prisons. It might seem like a minor distinction, one related to jurisdiction alone, but it’s not. The difference between prisons and jails have everything to do with quality of life so we are really harming 30,000 women by not finding them a place in a prison. That sentence sounded nuts; I know, but it’s true. For a good explanation about the difference between prison and jail, click here, on the legal website HG.com (HG stands for Hieramos Gamos, Latin for ‘marriage of opposites,’ which means that the site’s founders think it’s almost impossible for anyone who isn’t a lawyer to understand anything about the legal system, an arrogance that might explain why they let their sentenced female clients languish in jails, but I digress.) Another 25% of women live in jails but are unsentenced. They suffer, too. Maybe not as much. Maybe more.
Republican Sens. John Cornyn of Texas and Mike Lee of Utah, and Democratic Sen. Sheldon Whitehouse of Rhode Island introduced the Corrections Oversight, Recidivism Reduction, and Eliminating Costs for Taxpayers In Our National System Act last Thursday. It’s a mouthful for the same old shit. Literally; the same bill was introduced in 2015. The day before the new version was brought out, law enforcement leaders sent a letter to Attorney General Jeff Sessions and President Trump but they haven’t responded. And they won’t.
A federal trial judge in Brooklyn says he’s going to hold a hearing on the perceived prevalence of lying by New York city police officers. There’s no way to be sure without an exhaustive search of all court decisions, but this could be a first. And a discussion of the credibility of police testimony writ large is needed. So this should be good. And still, ultimately, not get us that far.
“My dad’s in jail. I don’t like to talk about it. Most people don’t understand,” the doll said on the news. The announcer went on to say that one out of 28 kids have a parent behind bars which was why Sesame Street was introducing the blue-haired, orange-skinned Alex, the son of an incarcerated father and newest puppet on the block.
“I mean, that’s kind of interesting, no?” I asked all the women in the TV area. “They aren’t making that character out of nowhere. They either got a lot of feedback that kids watching couldn’t identify with the stories or they read some demographic data that says that this was a good idea. We’re talking millions of kids.”
None even responded.
I’m not an abolitionist but if there is any argument that every prison should be razed to the ground it’s the effects that separating children and parents have on little ones. It is pure violence yet it looks as calm and procedural as these ladies sitting here in the rec area, ignoring another one of my pathetic goads to get them to talk about current events.
I waited for a legal visit once when another inmate came in and told the visits officer she was there to see her daughter through DCF [Department of Children and Families]. There’s a window where you can see visitors before they come into the visiting area and I turned to spy the cutest little girl I had ever seen. A small red bow wrapped itself around her tiny, dirty blonde ponytail and her shirt, a navy Ralph Lauren polo shirt dotted with white polo ponies, topped off jeans and Nikes.
“Is that your daughter? She is so cute. I say that to a lot of the inmates but really mean it when I say that to you. She’s spectacular,” I told the mom
“Thanks. Yeah, I know. It’s the last time I’ll see her for 14 years. They’re terminating my rights.”
“I can’t have contact with her again until she’s 18.”
And with that, the door opened and mother and daughter reunited like it was any other day and went into the play area, DCF supervisor lurking in the corner. They sipped non-existent tea and stirred invisible macaroni in a toy kitchen, both remaining composed about the fact that a system was killing each of them to the other. They’re dead to each other. For fourteen years.
Then [Attorney] Ruane arrived and we were escorted into one of the private rooms where I burst into tears. Literally. My face exploded at the thought of the conversation that was happening between parent and child in the play area.
“I get it. You wanna get out of here,” Ruane said as he unpacked carefully labeled folders. He works with his son, sees him every day.
“No. That’s not…” I shook my head. “You wouldn’t understand.” To this day, I can’t remember one word in any of those folders and my freedom was filed in there.
I hadn’t seen the mother here before and I haven’t seen her since so she’s not a lifer; she’d be living in this unit, watching the news with us if she were. She probably did something to kick off the termination proceedings, but how bad could it have been if she isn’t even doing the type of time I am? And DCF allowed them to say goodbye – would they do that if she posed danger to the child? Sure, a social worker stalked them from across the room, but would DCF permit that toddler to connect with a person who had beaten her or neglected her in a dangerous way? I assume there’s some theory of trauma that would prevent that. Let me rephrase: I’m sure there’s a theory of trauma – why didn’t it prevent this?
I bet that wasn’t the case but they still took her daughter away, to what appears to be an upper-middle class family that already loves and dotes on her. The girl will be okay but she won’t be the same. Doubt will follow her everywhere she goes, even after she gets wind of what happened to her fourteen years into the future. No accusation or conviction can extinguish a child’s love for and pride in her parents, but criminal charges make that love and pride smart in unending waves.
Why wasn’t I good enough to make you good? And if you didn’t do it, why didn’t you fight or fight harder? How did you take care of me when you can’t take care of yourself? I ask myself those questions every day. This entry has more queries, question marks and open ends than anything else I’ve written so far. And answers? There are none. I’m tenacious and introspective enough to find them if they were somewhere. They’re not.
Accepting that you’re a fuck-up is easy; no one knows how bad you are more than you do. But accepting that the person who you thought was perfect – and who was supposed to perfect and lead you – is more than just clay-footed and may have some very real problems navigating the world is excruciating. They call this adulthood, but it’s really just abuse.
In front of a blaring TV set that had stopped reporting on Alex, I zoned out remembering all of this: the polos, the puppets, the parents, the pain.
“Winks, what’s wrong?” someone asked.
“I don’t wanna talk about it,” I told them and headed back into my cell with my forefinger pressed against my lower eyelid. They can’t understand.
THREE IDEAS IN CRIMINAL JUSTICE FROM OCTOBER 9 – 15, 2017
It’s really happening now…Our “law-and-order” president and his administration are quietly cutting funding for halfway houses. I refused halfway house placement because, to me, it was just moving prison to the street and allowing people to wear their own clothes. However, for someone who doesn’t have a place to live once they leave custody, halfway houses provide essential transitional living space. This is a guarantee of crime.
I attended the John Jay College of Criminal Justice’s Smart on Crime conference this week which had embattled Manhattan District Attorney Cyrus Vance, Jr. on the agenda. Conference attendees figured that he wouldn’t show up because he would have to face some questions about accepting graft guised as campaign contributions after giving the Trumps and Harvey Weinstein passes for obvious criminal conduct. Vance did appear at the conference and simply told people during the Q and A session (which was not recorded) in the audience that everything he did was legal. I have two thoughts on Vance’s reply that everything he did was legal. They are: 1) no shit, that’s the problem; and 2) he laughs at this as a defense when he prosecutes. Maybe he needs to open up to the fact that he’s more like his targets than he wants to admit.
And the Supreme Court of the United States just accepted (or granted certiorari to you legal eagles) a case, McCoy v. Louisiana, where a defense attorney ignored his client’s claims of innocence, refused to investigate an alibi defense and admitted that his client committed the crime over his objections. A Yale Law School clinic wrote a brief in support of Mr. McCoy and they argued that McCoy’s attorney switched sides and fought for the prosecution. The issue of attorney disloyalty needs to be addressed and outlawed by our highest court but I doubt it’s likely. The same court has already approved of conceding guilt on a client’s behalf in capital cases like this one. Plus, the standards of effective defense are so low now than nothing an attorney does is cause for reversing convictions. You should follow this case because if you think defense attorneys protect their clients. They don’t.
“He who represents himself has a fool for a client, Bozelko,” the strip search C/O said when I got back from court. She told me to make sure my lawyer doesn’t force me to take so many court trips. I didn’t have one, I told her.
“I’m different,” I replied.
“Oh, you’re smarter?” she huffed.
“No. He who represents himself does have a fool for a client…because he’s a ‘he.’ I’m a female. Totally different game.”
Representing yourself is a different game, but it isn’t always a losing one. According to the limited data available on the subject, pro se criminal defendants usually fare no worse than their represented counterparts. Erica Hashimoto, a law professor, conducted one of the only studies of the effectiveness of self-representation and found that, at the state level, pro se defendants fared better than their represented counterparts. Half of all pro se defendants walked away without a conviction; only 25% of attorney-represented people cleared the conviction hurdle. Of the self-represented people who were convicted, only half of them were convicted of felonies whereas 84% of represented people who lugged convictions out of the courtroom carried the extra weight of felony status.
Only 42% of self-represented defendants entered into plea bargain agreements while almost twice as many represented defendants, 71%, folded and pleaded guilty. Of those pro se litigants who displayed their layperson chops at trial, 2% of them were acquitted of all charges. It doesn’t sound promising for the DIY legal set – until you learn that only 1% of represented defendants were acquitted of all charges after trial; pro se defendants are twice as likely to get themselves acquitted.
The results in federal courts were comparable, and both upended the idea that counsel is necessary for access to a criminal court.
And this pisses off everyone in a courtroom The right to counsel doesn’t exist (if it does at all) for the protection of the defendant. It exists to make lawyers feel needed, like they have some knowledge that no one else can get from reading the same books.
So far, I’ve had one lawyer who told the jury three times that there was no reasonable doubt in her closing argument and used Buck Cherry’s “Crazy Bitch” as her ringtone (Angelica Papastavros), another one who didn’t know I was going to be sentenced and cried when I got screwed (Tina Sypek D’Amato) and who needed me to write out the direct examination questions for her in another trial, a third who never contacted an alibi witness and lied about hiring an investigator (Dean Popkin). I have a habeas attorney who went to the trouble of subpoenaing necessary phone records yet made sure that he secured only half of them. Even after all of that, I dared to hire the dude who represents the WWE star who’s here – I’ve never heard of her, Sunny, but apparently she’s big on the wrestling circuit – and then she told me in the medical unit that he was removed from her case for “inappropriate behavior,” whatever that means in reference to someone who fake fights other people in costumes. I mean, would she mind if he threw her against a wall? What’re we talking about here when it comes to propriety?
With these fine legal minds barricading me from injustice, what kind of an asshole would I be to get another lawyer?
The right to self-representation was established by the Supreme Court in 1975 in Faretta v. California and it’s supposed to be absolute. In practice, though, it’s not; lower courts have tacked on limitations to the right: the request has to be timely made, it cannot be made for the purpose of delay, it must be made prior to the start of trial. Because of these conditions – rules that are essentially made up because they don’t appear in the original decision – many people are denied the right to represent themselves. I was denied when I wanted to represent myself and prevent Papastavros’ perfidy because my request was made after the jury was selected. There are at least 2509 defendants who were also denied that right if appellate decisions are any indication. That many people appealed court’s ruling denying their motions to represent themselves.
Another, older Supreme Court decision has enabled these encroachments on the self-representation right. Gideon v. Wainwright, the seminal 1963 case on the right to counsel, held that due process rights are violated when laypeople are left to represent themselves against criminal charges. When Faretta was decided twelve years later, the right granted to defendants to represent themselves wasn’t so much an individual right to self-determination as it was the right to reject a court-appointed, taxpayer-funded attorney who would be assigned to you without your even requesting him.
Even though the petition that launched the right to counsel into the nation’s highest court was handwritten by a pro se petitioner – Gideon himself – the idea that self-represented defendants are very unlikely to receive a proper defense was part of the Gideon Court’s reasoning and ended up creating the welfare model of criminal defense that we use today. As many as 90% of defendants in various jurisdictions are indigent and qualify for appointed counsel. Many of them languish in jail because there aren’t enough attorneys for them and the lawyers that are available are so overburdened that they can’t even render effective assistance. But people’s cases won’t move without them.
It would be unjust to force all, or even most, of these defendants to represent themselves just to jump-start prosecutions. Too many people facing criminal charges are functionally illiterate, don’t know how to do legal research and even more have trauma histories that affect their self-concepts and confidence to challenge adversaries in a meaningful way.
But data shows that many people can represent themselves effectively, better than the lawyers that they’re waiting for. This isn’t a total vindication of the collective ability in prisons, but more an indictment of modern criminal defense. If there were a way to combine the defendant’s knowledge of the case with the attorney’s expertise and experience into a representative team, we might move cases through criminal dockets more quickly and effectively.
There is a way; it’s called hybrid representation and, while constitutionally permissible, it’s disfavored by courts because the see the right to self-representation and the right to counsel as mutually exclusive; Gideon and Faretta can’t work together. But this isn’t true. It’s the lawyers and the courts who won’t work with defendants if they want to keep their cases moving.
The Faretta decision actually says the right to represent yourself and the right to a lawyer are the same right, just different facets of it. Yet courts will either create situations which amount to self-represented suicide or they force government assistance on litigants. They rarely allow anything in-between.
If I could get over my anger at my attorneys, the in-between might work for me, too. Working as a partner with someone so I can shape my own fate yet still feel some trust in someone who fulfills their duty of loyalty to me might help me from having to flip the bird to the judicial branch. That’s how pro se representation is interpreted. I don’t kid myself that anyone, including me, sees it as a mere constitutional exercise.
No defendant in Connecticut can have hybrid representation; it’s outlawed for everyone. Instead, the pro se defendant has “stand-by counsel”; the attorney can’t jump in and correct something he might do against his interests. All the attorney can do is answer questions when asked – if the fool knows to ask them.
If more courts recognized hybrid representation and allowed a team to represent defendants – the client and the lawyer together – then we might be able to start moving this backlog of people who are waiting for counsel around the country. And produce fair results.
Hybrid representation does more than clear court clog. There’s an empowering message in hybrid representation which is that the defendant has the ability – and the duty – to clean up his own mess. Rather than being served by a “public pretender,” the defendant can get real and contribute to the resolution of his own legal problems.
Not enough defendants have demanded hybrid representation – it’s banned in many states – because they don’t know about it or they think they’ll never win if they try to help themselves. Statistics say that they can prevail – or at least fare better – if they pitch into their own defense. Hybrid representation holds tremendous potential for relieving the criminal defense problems around the country. Refusing to explore this solution makes fools of us all.
THREE IDEAS IN CRIMINAL JUSTICE REFORM FROM OCTOBER 2 – 8, 2017
Obviously, the news was filled with stories of the Las Vegas concert shooting, one of the largest crimes in the history of the country, including the fact that the shooter – amazingly enough – had no criminal record. Many terrorists don’t have rap sheets and convictions. Looking for them amongst convicted felons is a waste of time.
The New York Times reported that prison guards in Alaska put collars and leashes on naked inmates while forcing them to walk in front of female staff members and left them in cold, filthy cells without proper covers. The investigation that discovered these abuses isn’t notable just for the horrors within it, but because it was written by an ombudsman, a dying breed of correctional supervisor. If Alaska didn’t have an ombudsman, these human rights violations may never have come to light. (Translation: this kind of correctional chicanery is happening in facilities in states without an ombudsperson.)
Manhattan District Attorney Cyrus Vance, Jr. took two hits this week. First, ProPublica, working with The New Yorker, dropped the bomb that Ivanka and Donald Trump, Jr. dodged a felony indictment for fraud years ago, after their attorney, Mark Kasowitz, made a $25,000 donation to Vance’s re-election campaign, only to have it returned prior to Kasowitz’s meeting with Vance. After the prosecution was shuttered, Kasowitz reappeared with a $32,000 donation to the same campaign, a contribution that was returned only recently. Then, days after this Trump bombshell, it was revealed that embattled Miramax founder Jeffrey Weinstein’s lawyer donated $10,000 to Vance’s campaign four months after Vance decided not to charge Weinstein with sexual assaulting a model. I’ve said it before; I will say it again. Prosecutors are inherently dirty.