Murderer’s Privilege (An Attempt at Mostly Fiction)

The heavy steel door latched shut with the tiniest of clicks just before the jail guard walked away. My seat was round and about as large as a personal pizza. My left buttock tingled and then drifted off to sleep.  Across from me sat my client, wrists chained to his sides, feet chained to the floor: standard procedure when visiting a client in the jail’s maximum security wing.

“So I’ve been talking to some of the other guys in here…”

Oh no. My client had been discussing legal strategy in his homicide case with his fellow inmates, several of whom lacked the legal skill to avoid picking up their own homicide cases.

“…and I don’t think I have received enough training on how not to be a killer.”

My client lifted two fingers far enough from the chains on his waist to slide his manila envelope across the table. I skimmed each clipping and set it on the table between us. Inside the envelope,, I found…

…one newspaper clipping about a man in Staten Island who died begging for his life while his killer choked him to death. The killer told the dead man to stop selling drugs on the corner, but the deceased did not stop quickly enough for the killer’s liking. The grand jury decided that the district attorney did not have enough evidence to charge him with anything.

…another newspaper clipping, this one about a man in South Carolina who shot his victim in the back several times as the victim ran away. Strangely, the killer bound his victim post-mortem. The killer’s companion walked up to the body as the killer dropped another weapon on the ground to make it look like self-defense. Both the killer and his buddy wore identically-colored clothing, and the group to which both men belonged had a fearsome reputation for intimidating and brutalizing their community.

…one last newspaper clipping. A man in the midwest fled a gunman on foot. The gunman caught his prey and took him down. The gunman fired his pistol at the deceased as he labored for breath on the ground. Before dying, the victim yelled at the gunman for what he had done. “You fucking ran, shut the fuck up” sneered the gunman’s companion. Another of the gunman’s buddies mocked the victim for his inability to breathe as he lay dying. The shooter later claimed that he had intended to use one of his less lethal weapons and shot the victim by mistake; he stands accused of negligent homicide, and not murder.

…and finally, a computer print-out of a 100-page report, authored by the United States Department of Justice. The DOJ had penned this report in response to another high-profile killing in Missouri. The final section, entitled “Necessary Changes,” had been dogeared by my client. His handwritten notes filled the margins on either side.

I see where he’s going with this. “So if I’m hearing you, you want me to argue that, like the police officers in these news clippings, you simply have not had adequate training on how not to stab your brother-in-law in the chest while arguing on Christmas Eve morning.”

That guy in New York begged for his life on camera. And they say that the cop was right to fear for his life? Why can’t I say the same thing? My brother-in-law said ‘I’m sorry’ to me right before I stuck him. But maybe I was still afraid of him? Was that completely fucking nuts for me to still be afraid of him? The DOJ says I would probably benefit from more training on ‘proper use of force.’ And shit. Most of these guys are never charged with anything. Why do they get to charge me?”

“So how about this: I make a pitch for you to voluntarily wear a body camera on your person for the rest of your life in lieu of a prison sentence. You want me to offer that?”

I don’t know. Should I?”

“Do you think wearing a body camera would help you value human life a little bit more?”

It couldn’t hurt.

“Well, it better. They’re finally charging cops for this in South Carolina, thanks to the fact that most people carry a high-powered camera in their pockets all the time. But maybe with time, your fear of getting caught hurting people will turn into finding genuine reasons to not want to hurt people.”

“Yeah, it couldn’t hurt.”

Barely missing a beat, my client added:

“You know what else I should get? A union representative to protect me from people’s complaints.”

“Well, you already have a representative, and I’m a member of a union. Is that close enough?”

“They also should have set up a citizen’s review board to screen people’s complaints about me.”

“You mean  a jury trial? Because you can have one of those.”

“No, not a trial. The thing before trial where all the complaints get dismissed.”

“You mean a grand jury? They indict everyone unless you are a cop.”

“It’s too bad I’m not a cop, or I wouldn’t be here right now.”

Unfortunately, my client was probably right.

-Norm

A Modest Proposal for the Looming California Prison Crisis

In order to comply with a federal court order, Governor Jerry Brown must release 10,000 more prisoners by the end of this year. Over the past 15 years, California’s prison population has ballooned by 500%. At the time of the federal court’s order, California’s prisons were stuffed to 175% of inmate capacity. The release of 10,000 more will bring that down to the 137% ordered by the federal court. Prior to this, about one inmate per week was dying in prison due to preventable medical reasons made unpreventable by overtaxed prison health care systems.

The bulk of these prisoners are serving multi-year or multi-decade sentences under California’s Three Strikes law, regardless of how long ago a defendant committed his “strike” offense. At least a thousand are serving terms for non-violent drug offenses. Several thousand are approaching old age. Many others would be treated more effectively, more humanely, and more affordably in psychiatric facilities.

Governor Brown responded to the federal court’s most recent demand with what one lawyer called “willful defiance.” Governor Brown has since modified his stance to include giving over $300,000,000 to the Corrections Corporation of America to rent their for-profit prison facilities. Governor Brown says that this is necessary for public safety, because public safety would be jeopardized by the early release of an elderly inmate who committed a robbery 20 years prior, and who will likely die of natural causes before finishing his lengthy prison term for some property crime.

Governor Brown is missing an opportunity to solve problems in California’s traditional manner: letting the voters decide by way of ballot proposition. Californians routinely place decisions regarding criminal sentencing and the taxes that pay for it on the ballot for popular vote. Thus far, the initiative process has resulted in a huge prison population that no one wants to pay for. But that’s only because the right initiative hasn’t been passed yet.

I propose the following legislation:

Section 1

The Title of this act shall be the “Entitled Baby Boomer Criminal Justice Act,” and shall be referred to hereafter as the Act.

Section 2

We the People of the State of California have agreed upon the following knee-jerk reactions to the complicated social problems of crime and drug abuse in our state

a) If you do the crime, then you do the time [original emphasis];

b) We, the People, breathlessly follow any news story concerning the disappearance of a photogenic child, and we have decided that the sad afterglow of such a highly publicized tragedy is the perfect time to craft legislation that will apply to everyone for the foreseeable future;

c) We, the People, are very confident that no provision of the Act will interfere with the life, liberty, or happiness of anyone that we know, because they are good people and our kids are in private school;

d) Unlike the fields of medicine, astrophysics, or engineering, the subject of criminal justice requires absolutely no specialized education or training; this gives our opinions the force and weight of actual research.

Section 3

Recognizing that more than one-fifth of the current prison population are senior citizens, We the People declare the following measures necessary for public safety:

a) At no time shall an ailing or elderly prisoner be given access to motorized wheelchairs whose battery life would allow them to travel more than 20 feet beyond prison walls;

b) At no time shall an elderly prisoner be given access to non-motorized wheelchairs with brakes, since brakes would encourage elderly inmates to attain dangerous speeds during escape attempts;

c) All nurses, doctors, surgeons, and pharmacists who attend to elderly prisoners shall register as “criminal enablers” with the sheriff of chief of police of the city or county in which they reside, and shall not reside within 1000 meters of a park or playground;

d) For inmates who have been sentenced to serve additional time beyond a life sentence, their mouldy bones and other mortal remains shall be kept in a vessel made of recycled cardboard and stowed in a broom closet to be determined by the Department of Corrections and Rehabilitation.

e) An inmate’s age, frailty, or pitiful life expectancy shall not be considered when deciding whether to release the prisoner to ease institutional overcrowding, because if you do the crime, then you should do the time.

Section 4

The following provisions have nothing to do with the fact that the Act was drafted, edited, and promoted by the Corrections Corporation of America and the union representing state corrections officers:

a) Unlike alcohol, tobacco, and prescription opiates, cannabis sativa and cannabis indica are dangerous, addictive narcotics that cause overdoses, murder, and dangerous depletions of both Cool Ranch Doritos and internet bandwidth. Any inmate whose blood tested positive for the presence of THC at the time of their arrest shall not be granted early release under any circumstances;

b) Anyone who, while present in the United States without legal documentation, dares to exchange their labor for money, goods, or services shall be imprisoned in the county jail or in state prison for 16 months, 2 years, or 3 years. This includes those who exchange their labor for produce that they later sell themselves in lieu of actual wages;

c) No part of subdivision (b) shall be used to punish the Job Creators ™ who lure undocumented workers from their troubled homelands with the promise of toil in exchange for produce;

d) We the People, by way of our elected governor, and the Department of Corrections and Rehabilitation shall give as many millions of dollars as are necessary to the purveyors of privately owned prisons for use of their facilities. This policy will continue until California’s sentencing laws have accomplished their goal of creating a crime-free Utopia, which will assuredly happen some time before the state completely runs out of money.

Section 5

We the People hereby refuse to pay for anything that we want, including the implementation of the Act. Specifically:

a) All budgetary items not related to the prosecution and prolonged incarceration of inmates shall be tallied under a single line item called “bullshit;”

b) All of the costs for maintaining the prison population shall be deducted from designated “bullshit” expenditures, because no state services benefit the gainfully employed and our kids are in private school anyway;

c) The Courts of Appeal will heretofore be known as the Courts That Waste Tax Dollars by Delaying Executions, and their operating budgets shall be allocated along with all other “bullshit” expenditures;

Section 6

In keeping with California’s rich tradition of placing individuals’ constitutional rights on the ballot for majority vote, We the People hereby strip the Superior Court, Courts of Appeal, and Supreme Court of jurisdiction to hear cases in which prisoners allege that the Act strips them of due process rights or imposes cruel and unusual punishment under the Eighth Amendment to the United States Constitution.

Section 7

Any orders by the Supreme Court of the United States that are contrary to the Act shall be returned to the Supreme Court by registered mail with an affixed Post-It note that declares, “UR not the boss of me,” followed by the following emoticon: > : p

Since I am unable/unwilling to breach this blog’s anonymity to gather signatures and submit the proposal to the Secretary of State, I entrust you, my readers, to carry this torch for me.

Because if you do the crime, you should do the time!

In accordance with statute.

In accordance with statute.

Respectfully Submitted,

Norm DeGuerre

Norm Reviews: Orange is the New Black

Orange is the New Black (OITNB) is the newest program in Netflix’s burgeoning foray into original content. The premise is based upon the true story of Piper Kerman, a self-described WASP from Boston who, during an “adventurous, lost soul phase” after college, helped her girlfriend (a heroin dealer) sneak a suitcase of drug money into a foreign country. Ten years later (the statute of limitations of that particular crime is 12 years, by the way), Kerman is living a respectable life and engaged to Larry Smith, a writer. She is now an advocate for women’s prison reform.

The premise itself is a commentary on the overreach of tough-on-crime drug laws. It challenges our belief that “nice people” can never wind up behind bars. In fact, they often do. Perhaps more often than the average American might think.

Every episode of OITNB spends time focusing on one or two of the other inmates who share the prison with Piper. These flashback sequences often reveal how an otherwise “nice” person might find themselves serving a prison sentence. During the first few episodes, I find the flashbacks work just a little too hard to evoke sympathy from the audience. Later into the series, these sequences improve noticeably and are some of the show’s best moments. “I am in here because I am no different from anybody else in here,” Piper says during a visit with her mother. This is the sentiment that these sequences are clearly trying to invoke, and they are largely successful.

At the same time, OITNB manages to make prison feel closer than many of its viewers might have thought by illustrating the frightening overreach of this country’s war on drugs. Drug use and addiction lay at the heart of several characters’ back stories, as are the federal sentencing guidelines that give judges little power to do anything but send non-violent drug offenders to prison.

OITNB does not shy away from the subject of abuse by correctional officers. I appreciate OITNB’s desire to show the unsuspecting viewer at home the many indignities and abuses that female inmates across the country suffer at the hands of bent COs. OITNB shows COs fathering children with inmates, selling them dope, trading them dope for sexual favors, turning a deliberate blind eyes to inmate-on-inmate violence, and a slew of other crimes and sins that likely have corresponding true stories from real prisons. But the small cast of CO characters forces OINTB to have all of them display at least two of these behaviors apiece. The viewer at home should see this as creative liberty taken for the sake of compelling television (which OITNB certainly is) and not as unfair slandering of corrections officers.

What impressed me most about OITNB was the way it kept Piper’s personal story parallel to her prison experience. In one scene, Larry’s parents try to persuade him not to follow through with his marriage to Piper. They urge Larry to wait to see what Piper is like after having served her prison term. The sentiment behind their words is, doubtlessly, a sentiment that many of the viewers at home would have if their sons or daughters decided to marry someone who has yet to finish serving a prison term. Larry’s parents assume that prison, dank, disgusting, and violent place that it is, will make Piper a worse person, a person to whom they do not want their son shackled for life. Everyone who sympathizes with this feeling should then ask themselves what, exactly, is the purpose of our prisons if they make people worse than before they went in?

Even when a person leaves prison largely intact, that person is often no more prepared or able to avoid prison in the future. Only two characters leave the prison during the first season of OITNB, but one of them returns within two episodes. Tasha “Taystee” Jefferson spends two episodes preparing for a parole hearing that wins her an early release. However, after her release, she finds that the only distant relative willing to take her in makes her sleep on the floor, and allows the use of her floor for one or two nights at a time. Taystee returns to prison after committing a new crime with the intent of returning to prison because, ultimately, it was easier than life outside. Although I appreciate OITNB’s attempt at showing how a lack of outside support contributes to the revolving door that is our prison system, I have never, in my years of representing current, former, and future prisoners, met a person who wanted to return to jail. Perhaps my range of experience is too narrow.

One character in the series commits a rather sensational crime. She arrives to court ready to see her public defender, but a private lawyer seduces her into accepting his services — without pay. This is interesting because it is one of only two places in the season where public defenders are mentioned at all. The private attorney preys upon her distrust of public defenders so that he can represent her for his own selfish reasons. I can tell you that the counsel she received was very poor quality.

In the final two episodes of OITNB, four major characters accuse Piper of being a bad person. These people include her fiance, her lover, and her fellow inmates. Their reasons vary, but they all stem from actions by Piper that, at the time, were totally understandable. This occurs simultaneously with a subplot in which a senior prison official teaches a junior corrections officer to stop thinking of the inmates as human beings. It made me wonder how different the prison experience would be if it were not so preoccupied with telling the inmates that they are “bad people.” Bad actions can be corrected; bad people cannot. With the rate of recidivism so high, one almost wonders if those in charge benefit from that revolving door.

Overall, OITNB has truths to offer its viewers about a population that is largely invisible and voiceless. I hope its message reaches lots of other people through the lure of high quality television. If you enjoy reading this blog and are interested in what happens to my clients after they’re my clients, you should check it out.

Respectfully submitted,

Norm DeGuerre