The Warrant Exception: A Fourth Amendment Field Report

Most of my cases involve some kind of search. My clients have had their homes raided by squads of police officers sporting surplus military weaponry. Their underwear drawers, pants pockets, and backpacks have been turned inside out. They have been ordered to sit on curbs in handcuffs beside their cars while their neighbors looked on. In the most extreme cases, the long arm of the law has pulled its nitrile gloves tight across the knuckles in its search for contraband.

Given the invasive nature of these searches, should a police officer be able to carry them out whenever he or she wants? Shouldn’t a neutral, detached member of the judiciary take a look at the officer’s’ reasons for wanting to do these things, consider whether those reasons amount to probable cause and sign a warrant stating that the officer’s behavior will pass Constitutional muster? I would only need two hands to count the number of times my clients have seen a warrant before a search, but I would still have fingers to spare.

And yet as a matter of law, any search without a warrant is presumed to be illegal. This rule, along with the rules requiring Miranda warnings and appointed counsel for the accused, came from a bygone era of Supreme Court jurisprudence. In later years, the Rehnquist Court found many of these rules too protective of the accused. Rather than overturning these rules, the High Court decided to puncture them with exceptions that police can rely on to justify their behavior. In most cases, the police succeed because the “exceptions” cover the vast majority of times my clients have been searched. Searches done with a warrant are now the exception, not the rule.

My client (let’s call him “Client”) lived in a duplex in one of those unincorporated areas between good-sized cities; an older residential neighborhood with too many cars parked in the driveway and no sidewalks. Client shared the duplex with his wife, his brother-in-law and his brother-in-law’s indoor marijuana grow, which he tended with help from a friend who lived elsewhere (let’s call him “Parolee”).

One day, Parolee addressed his finished product to the wrong ZIP code and accidentally mailed a big box of marijuana to the other side of the state. Detectives from far away soon began following my client and his family because they lived at the return address on the package. They engineered a “consensual encounter” with Client and Parolee on the sidewalk in front their home just as they were about to unlock the door and go inside. For 15-20 minutes they peppered Parolee with questions to find out whether he lived in the duplex (if he had lived there, the detectives could have searched without a warrant). Parolee, who had accepted a totally voluntary invitation to sit on the curb between two police cars, continued to insist that he did not live there.

So the cops went with their Plan B; they tracked down Client’s wife in the maternity ward of the nearby hospital, waited until after she had given birth, confronted her as she was learning to nurse her infant, and convinced her to sign their consent form. I will point out here that Client and his wife have very limited English skills; I had never spoken with Client without an interpreter. The officers claimed that all of their interactions with Client and his very new family were consensual, and that Client and his postpartum wife could have ended the encounter at any time.

Now if I pretended to be a member of my local bench, I would say that living at the return address on a big box of pot is probable cause to search Client’s home and sign that warrant. If I were the on-call judge, available 24/7 to sign emergency warrants, I might have even signed it outside of business hours.

So why harass a new mother and her newborn baby instead of simply asking a judge for a warrant? If you have given birth, or have been at a birth, you know what a special and vulnerable time it is for the mother. The miracle of life is exhausting, messy, painful, and overwhelming; between hospital gowns and nursing, it leaves little room for modesty. These detectives had chosen to drive hundreds of miles to interfere with something sacred rather than seek a warrant from a judge.

That’s the part that gets me; they didn’t have to, they chose to. Why?

And if cops can bust in on a woman learning to express colostrum, what can’t they do?

Respectfully Submitted,

Norm DeGuerre

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The Thin Blue Curtain

Dozens of cars whooshed over my head every second; I first heard the engine, followed by thunks of axles bumping over seams in the freeway, and then the air as it tried in vain to catch up in their wake. The lamps fifty feet above the cars were the only light sources; only a little of it snuck past the overpass and made the journey down to where I sat, in a police car, beneath the highway. I was left sitting in a memory of light, like the image that remained when you finally turn off an old television that had been on for too long.

This light left too many shadows. The nearby shipping depots and body shops had long since become “mixed use” developments, which meant they were only used for discussion during city council meetings. They loomed like sad bamboo around the Hotel Antillia – squeezing it against the two-lane road that ran along the freeway above.

Officer Timmons turned on the spotlight mounted to the side of his police car as he pulled into the hotel’s horseshoe parking lot and shined it on the single-story rows of hotel rooms ran along either side. Each room had a front door that opened into the attached carport, swallowing the doors and cars underneath in shadow until the spotlight punched through. The spotlight darted from car window, to front door, to the lone window allotted to each room, and then on to the next room.

This was not the first hotel parking lot that we had roamed that evening – we were looking for anyone who had left their room to smoke, or talk to other guests, or sit in their car. Officer Timmons was free to chat with anyone he saw in public, and if that person happened to be high, getting high, holding an open container, or on probation or parole, Officer Timmons would then further intervene into their evening.

“Outstanding.” I heard Officer Timmons as he braked to the right of a red Corolla in one of the hotel’s parking spaces. No need to undo the seatbelt – Officer Timmons had been in and out of his car so often that night he no longer bothered to fasten it. I peered through the passenger window in hopes of seeing what Officer Timmons had spotted in a matter of split-seconds; a woman’s head shot up from the driver’s lap just as the driver tried to sink lower behind the back of his seat.

“Let me guess, it’s not what it looks like,” Officer Timmons said as the driver blinked in confusion at the officer’s flashlight. Both he and his passenger handed over their IDs without being asked. Officer Timmons read each card as the driver spilled the entire saga of how he and his lady friend wound up in that parking lot.

I rolled down my window just a bit, and pressed my ear to the crack.

“You see, officer, I know that this isn’t the right place to be doing this, but she’s married with two kids, and my room wasn’t free because me and two other guys chipped in to pay the $54 it cost to rent a room and they got back early, and there really wasn’t anywhere we could go, and no one was around, and besides, I have every right to be here because it’s a public parking lot.”

“Yes sir, that’s the problem, you’re doing this in a public parking lot,” Officer Timmons said, the threads of his patience holding steadfast.

Meanwhile, the dispatcher chirped over the car radio and into Officer Timmons’ earpiece. No wants, no warrants, and neither party was on probation.

“Alright, I’m going to be back in a half hour to see if you two are still out here. Take what you’re doing inside, or I’ll take you in,” Officer Timmons warned before returning their IDs. “I can’t have you out here making yourselves targets for whoever might want to jack [rob] you while you two are distracted.” He slid back into the police car and continued his inspection of the Antillia parking lot; the two men who had been chatting across the lot through their respective windows had long since closed their curtains.

My night with the Sequoia Meadow Police Department followed much the same pattern. Officer Timmons had no sergeant or commanding officer dictating where he should patrol, and so he spent the time between calls roaming secluded, poorly lit public spaces. We rolled through the Honduran neighborhood to let the local gangs know that the SMPD was out and about. We shined spotlights into empty parking garages and parks that closed to the public at sunset. We visited the boarded-up meth house across from the union hall, whose tenants had scattered after one of them hanged himself inside. We also found the time to swing by the homes in the hills with three-car garages because, according to Officer Timmons, several of the owners had complained that they don’t “feel safe” without a “visible police presence.”

At around 1:00 a.m., Officer Timmons drove toward the entrance to the SMPD’s parking lot in order to drop me off before his lunch break. On one side were the steel skeletons of new, “affordable” $800,000 2-bedroom condos. On the other side, the gray glass façade of a large investment firm; signs and arrows guided drivers to the designated limousine parking. Officer Timmons wished me a good night and dropped me off at my car. He pulled away and went to grab lunch, which at that time of night was going to come from either a convenience store or a drive-through.

I nearly missed my exit home while driving back from Sequoia Meadow; I had gotten lost in thought. In 7 hours, Officer Timmons would finish his shift and begin his hour-long commute to the home where he and his family could actually afford to live on a police officer’s salary. Officer Timmons will have spent the remainder of his shift continuing to roam the semi-secluded public spaces of the city, looking for people who lack the privacy and/or good sense to indulge their vices indoors. If their crimes are serious enough, Officer Timmons will arrest them; otherwise, he will shoo them away back into the shadows for their own safety. This will also save Officer Timmons from having to drive back to Sequoia Meadow on one of his days off to testify in court.

“The system is broken,” Officer Timmons had told me as we filled his tank with gas at the beginning of our ride-along. I had nodded politely, assuming that his reasons for thinking that would be completely opposed to my own. But as the evening unfurled, I learned that our opinions overlapped to a surprising degree. Jails and prisons take first-offenders and hardens them by subjecting them to an environment of constant fear. The defendants who go in hardened become permanently lost. Those who avoid jail are simply ignored like a cigarette butt on the sidewalk; dopers and hookers are cited, released, rearrested when they fail to come to court, and then re-released, and then they go right back to old habits once they serve their time.

Officer Timmons has to figure out whether the psychotic homeless man is off his meds, on the right meds, or on enough meds and if he guesses incorrectly, the doctors release him to go right back to exposing himself before Officer Timmons’ shift ends. Sometimes, Officer Timmons finds a man leaning against the side of a building, too drunk to stand but awake enough to almost answer his questions. This man would be too drunk to safely book into the jail but unless Officer Timmons can prove the man’s identity, he cannot take him to the “drunk tank” to sober up. The last option is to call for first responders. But then Officer Timmons has to decide how urgent the situation is before calling it in; a “Code 1” (lowest priority) is unlikely to get any response at all, while a “Code 3” was reserved for life threatening emergencies.

These stories came back to me during my drive home. Officer Timmons represents the boundary between the have-nots and have-mores. Sequoia Meadow’s criminal class invited police intervention solely because they lacked the private space to commit their crimes away from prying eyes. In a matter of seconds, Officer Timmons must decide whether he has a legal basis for intruding into someone’s evening. Once he does, he then has to balance what is necessary to keep the city looking safe to the well-heeled residents while rationing the few crumbs-worth of public resources at his disposal. He has only three options to choose from; jailing someone temporarily removes their unsightly activities from public view, but often makes a bad person worse before releasing them back into the world. Calling upon other public resources, such as hospitals or firefighters, cost a tremendous amount of time and money. Sadly, the most efficient solution is to shoo the problem back into the shadows so that the citizens of Sequoia Meadow can tell themselves that it isn’t there. Afterward, Officer Timmons leaves the city to return to where he can actually afford to live.

Making people feel safe without making things better: this is what Officer Timmons meant when he said that the “system is broken.” Despite everything I had seen, I never quite appreciated just how bad things really are.

Respectfully Submitted,

Norm DeGuerre

Grandma, Should I Plea? (A Largely True Story)

“I have an idea – humor me on this.”

I would never have imagined saying these words to a client on the eve of trial. We were in court for a last-minute settlement conference. The jury panel would show up the next day. My client was about to make the most important decision of his life.

I showed my client a quarter that I had pulled from my pocket: “Heads you go to trial, tails you take the deal and go home today.”

My client’s grandmother sat in the first row of the courtroom. She clearly wanted to see what I was going to do next and she did not look at all alarmed at the proposition I had just made her grandson. Meanwhile, the district attorney paced in the back of the courtroom with his cell phone against his ear, trying to postpone a fundraiser for his upcoming political campaign.

Before we had come back into the courtroom, while we were in the courtroom’s attached holding cell, my client had asked me if he could ask his grandma her opinion on whether he should take the district attorney’s plea bargain or go to trial. I told him that he could, and I offered to tell the DA to do his campaigning outside the courtroom. “Fuck it, I ain’t got anything to hide. I didn’t do this and he can hear me say it.” I considered that a knowing and intelligent waiver of attorney client privilege.

My client’s resolve liquified – more than a little – after discussing his options with his grandma across the courtroom guard rail.

My client expressly asked me to share my impressions of his case with his grandma, so I gave them to her. She understood that my client was so drunk on the night of the incident that he had no idea that his friend was going to pull a knife, or that he was going to stick it in the chest of his sister’s ex-boyfriend who happened to be at that same party. She knew that he fled the scene only because he was afraid that the other people at the party were going to come after him for what his friend had done, and besides, the stabber was also my client’s ride to the party. She understood that her grandson had not heard his friend call out the name of his gang before sticking his knife between the victim’s ribs.

She also knew what the DA was going to argue: the red belt my client had worn in high school, the picture of him beneath a flag depicting a gang-related symbol that he used for his Tinder profile, and the red shoelaces on his Nike Cortez shoes proved that he and his friend were members of the same semi-organized criminal gang, and that they orchestrated this stabbing specifically to spread fear of their gang. She didn’t need me to tell her the tilted ratio of frightened white people swimming in our local jury pool, or that these same white people might believe the DA’s outlandish theory. If the gang enhancement were to be found true on top of the assault charges, my client would spend the next 24 years in prison. The only bright side would be that at his age, my client would be released by the time he was 42, with not an insignificant amount of life left to live.

I explained to the grandma that my client had one key that would let him go home; if he pled to just one of the several violent felonies he was accused of and admitted that he did it “for the benefit of a criminal street gang,” he would be released that day. The catch was that my client would be on gang probation for 5 years, and that gang P.O.s carried side arms and pat-searched the probationer and anyone in the home whenever they came for their unannounced visits. If they found any reason to violate his probation, he could wind up serving those 24 years anyway.

He was hopelessly torn, so I suggested the coin flip.

I tossed the coin into the air. It spun. I caught it as it fell. I slapped it against the top of my left hand. I failed to notice that the DA had hung up the phone and was no longer talking. I began to lift my fingers, as though I was about to pull away my hand and show the coin face underneath, but I did not pull my hand away.

“Now admit it – there is one side that you want to see more than the other.”

My client pulled in his lower lip, and nodded. “I want a trial,” he said. I kept eye contact with him while putting the quarter back in my pocket.

“You’re not going to show me what it was?” My client asked.

“No. Why does it matter? We were never going to decide this with a coin flip.”

My client sighed, straightened his back, and nodded his head again. His grandmother beamed with pride while her hands still clutched the guard rail in fear. Both thanked me for helping with his decision.

I had gotten the coin flip idea from an old episode of Frasier – I doubt that they would have wanted to know that.

Now, if you readers are wondering what happened in this case, whether he won or lost, I ask you whether that matters, and whether a decision that important should be determined by win or loss.

Respectfully Submitted,

Norm

Let Me Tell You About my Morning…

When you ride as a passenger in someone’s car, does the driver then get access, dominion, or control over your anus? I thought the obvious answer was “no, are you kidding me?” This week, I tried — and failed — to convince a judge to share this point of view.

My client stood accused of possessing a controlled substance with intent to sell. This whole thing started 9 years ago when my client injured his back on a construction site at the age of 16. When the prescription opiates ran out–which was right around the same time my client’s various doctors realized that each had been writing him separate prescriptions–he turned to buying them from other people. Codefendant was one of these folks. Eventually, both of them realized that heroin provides the same high and was much, much cheaper and easier to get than the prescription pills.

Client and Codefendant drove from their homes in Santa Asphalt to Stucco Valley to visit their dealer. My client left with 2 grams of heroin, which he stowed in his sunglasses case. Codefendant left with 20 individually-wrapped one gram servings of heroin stuffed into his rectum.

Unfortunately for these two, the Stucco Valley Police Department had been watching the comings and goings from their dealer’s house. They watched my client pull away from the curb and waited for him to (inevitably) roll slowly through the stop sign at the nearby intersection. A routine traffic stop turned into an arrest and search. Client and Codefendant were handcuffed, and placed in the back of the patrol car. Once inside, Codefendant tried to discreetly remove his contraband by planting his feet against the cage that separated him from the front of the police car, arching his back until his face pressed against the rear window, and grunting as he tried to slip two hands in handcuffs into the rear of his pants.

The cops noticed, became curious, and conducted a more thorough search.

This client became my client after his probable cause hearing, during which a narcotics investigator testified that the codefendant had too much dope to be consistent with personal use and that it was more likely for sale or resale. After the hearing, the District Attorney charged both Codefendant and my client with possessing the heroin with intent to sell. My client was accused of possessing all of the dope, including the codefendant’s.

I didn’t have much of a defense for my client regarding the amount found in the sunglasses case. However, I thought I had a pretty decent argument that my client did not possess the amount found inside the codefendant.

I hoped to save my client from having to go to jury trial by filing a motion to dismiss (aka a “nine-nine-five”). In this type of motion, the judge assumes that all the information that came out during the probable cause hearing is true. The defense lawyer then argues that even accepting the truth of the evidence, it does not provide probable cause for the charges.

My “opposing counsel” was actually a 3rd year law student; her supervising attorney had obviously believed that this argument was an easy enough “win” to hand to someone who had neither studied for nor passed the bar examination. I really hoped they weren’t correct–not on this case.

“Opposing counsel claims that this court must draw all reasonable inferences in favor of the charges,” I said during oral argument on the motion to dismiss. “Let’s start by reminding ourselves of what the word ‘inference’ means. An inference is a statement that has not been expressly proven, but whose truth is guaranteed based on other truths. We must also remind ourselves of the legal definition of ‘possession.’ According to case law, a person can possess something without it being on his person. However, the defendant must have more than ‘mere access’ to the location where drugs are found; the prosecution must also prove that he had the right of dominion and control over the area where they were found.”

“Now, the prosecution has conclusively proven that the codefendant received a ride from my client, and that at the time of this ride, Codefendant had 20 individually wrapped bindles of heroin stowed away in his body. However the District Attorney asks this court to infer – from his role as the driver – that my client not only had access to the codefendant’s anus, but the right to dominion or control over it. These ‘inferences’ cannot be guaranteed from these facts; I submit that the District Attorney’s theory is wholly unmoored from the facts and we respectfully request that the court dismiss the charges.”

The court denied my motion.

I can only imagine what the jurors will make of this case when it goes to trial.

Respectfully submitted,

Norm

Criminology 201: Selected Topics in Disorganized Crime

Criminology 201: Selected Topics in Disorganized Crime

In my last post, I discussed a client whose life experience failed to square with the accepted narratives that are taught to police, probation, and corrections officers during the course of their training. I now have a vision of what it would look like if my client were given the chance to communicate his life experience in a classroom setting. If any criminal justice class actually would let this client teach the lessons that he had learned just by living his life, the final result would probably be a wonderfully educational public relations disaster for the school in question. It might climax in a conciliatory letter of some sort to the aggrieved student body, with a short explanation of how little their textbooks had prepared them to comprehend life on society’s margins.

Like this one:

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From the Office of the Academic Dean, William H. Taft Institute of Criminal Justice and Weight Loss:

A number of students who were enrolled in last semester’s Advanced Criminology seminar have petitioned for review of their grades and disclosure of the grading criteria used by last semester’s guest lecturer. Our guest lecturer has provided a complementary set of explanations for the final exam that was given at the end of the term. He hopes that you will then use the lessons contained within his explanation to  figure out what went wrong with the remainder of your assignments, and assures you that “life is hard, but it isn’t complicated.”

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Question 1: Multiple choice, choose the correct answer.

You are a probation officer supervising a juvenile ward. He is often truant from school, and his urine has never tested negative for THC, suggesting daily marijuana use. To aid in this minor’s rehabilitation, you should:

a)    Violate the minor’s probation and advocate for his detention in juvenile hall – the

       minor must cease his violations of state and federal drug laws

b)    Order the minor to enter residential drug treatment for what is clearly a crippling

       addiction to a Schedule 1 controlled substance

c)    Get the minor drug counseling and something, anything, worthwhile to do with his day

d)    Wait until he gets arrested for something more serious, and then figure it out

Half of the class chose answer choice (a), the other half chose answer choice (b). Clearly, neither half had experimented with marijuana in high school. If you had, you would know that marijuana is not a reason to skip school; the decision to skip school is made completely independently of the decision to smoke pot. School holds nothing for a huge number of these children. They often have learning disabilities, or anger problems, and largely-inherited substance abuse patterns. They need far more help to succeed in school than they receive, and many predict their own failure early and throw in the proverbial towel. And with all this free time these kids now have, why not smoke pot?

Of course teenagers shouldn’t be smoking pot. It interferes with their brain development, screws with executive functioning (very relevant for someone debating the merits of stealing a car), and creates a lifestyle that makes it very hard for them to interact with professional adults (teachers, employers, customers, etc). But pot isn’t dangerous; in fact, it has no known fatal overdose. Depriving them of freedom for smoking it is counter-productive at best, and completely self-defeating at worst. Of course, some sort of intervention is necessary, and without it, this minor will likely end up in serious legal trouble: not because of marijuana, but because of the people in his life who also happen to smoke it. Those who reside in the real world will answer with choice (c). Those who are already employed in the system might answer with choice (d), but that’s not the right answer either.

Question 2: Multiple choice, choose the correct answer

Which of the following can be considered as proof that a juvenile has joined a gang?

a)    Wearing baggy jeans

b)    Living in a neighborhood that is controlled by a gang

c)    Spraying gang graffiti on a highway overpass

d)    None of the above

To those who chose an answer other than choice (d), consider for a second that the word “gang”suggests a semi-disciplined criminal conspiracy. Wearing certain styles of clothing, even if that clothing bears the colors or logos that gangs use to identify themselves, says nothing about whether a person is a member of any such organization. Anyone can wear a certain color of clothing, and clothing can be shed at will when the social group dynamics cease to reward the teenager for wearing them.

Like conformist fashion tendencies, mindless vandalism is also common to at-risk youth. Anyone can spray anything on any surface; the vandal does not need to have been given orders to do so in micro-writing that was smuggled out of a maximum security cell block in the anus of a corrupt corrections officer.

Finally, while many gang members have the misfortune of growing up in neighborhoods that are already divided into gang rivalries, no sane person chooses to live there. People are born there, stay there, have no hope of ever leaving there, and will probably die there. These kids have roughly the same life expectancy as someone living in the Middle Ages. Gang membership is assumed by rivals just by virtue of that child’s neighborhood. Before the child knows it, he is choosing his bus routes to school so as to avoid “rival” territory. He is already suffering the drawbacks of gang membership; wanting to accept the benefits is an easy sell, especially if they have no other alternative for safety. Again, the correct answer is choice (d).

Question 3: Short answer

What does it mean to “hold someone accountable” for his actions?

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Holy shit. As often as I heard you say this during our class discussions, very few of you seem to know what this phrase actually means. Holding someone accountable doesn’t mean showing them that their actions have consequences: anyone who has witnessed a car accident understands this. It doesn’t matter how many years of prison a person receives; the Convicted does not need you to remind him, repeatedly, in varying tones and volumes, that his own actions resulted in tremendous loss to himself and others. I suspect that many of you relied – to your detriment – on the thesaurus, which lists the following as synonyms for this phrase: attack, brand, blame, denounce.

Holding someone accountable for their actions entails building empathy for those affected by their actions; these parts of the brain may have atrophied from years of mistreatment in childhood, so we need to be patient. Holding someone accountable includes teaching them about alternative choices that could have been made. Extensive work needs to be done with those who – with or without reason – felt that they had no choice in their actions. Too many of your answers would have fit on bumper stickers, let alone three lines. Put more thought into phrases that are used so frequently. And for God’s sake, stop thinking in slogans.

Question 4:

Describe a situation where a person might plea “no contest” to a crime that they did not commit.

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Again, a disappointing number of blank answers for this question. The students who confronted me about this question after class insisted that no one in their right minds would do such a thing. During the course of these conversions, I inferred that none had ever been given poor legal advice by an attorney that either did not have the time to care, the ability to care, or the retainer to care about that person’s case. A depressing number of Accused plea because, quite simply, they do not have confidence that their attorney has heard, understood, or investigated their defense. And without a defense, why wouldn’t they plea?

Do not underestimate the frightening penalties that follow trial, especially in jurisdictions where the criminal sentencing laws (and the judges tasked with imposing them) are left to popular vote. Many, many innocent people (or people who have a colorable argument for their innocence) surrender their rights simply to minimize risk.

Finally, don’t underestimate how often the district attorney uses a “devil’s bargain” to coax a plea from a defendant who has a strong defense. In fact, the deals become more irresistible as the prosecution’s case weakens. For example, a defendant who is in custody on the day of trial will find a “credit for time served” offer irresistible. An 18-year-old will plea to terrible things in exchange for minimal time. A good lawyer will sometimes advise him or her not to take the deal, but the defendant will always respond by asking, “But I get to go home today?” In California, an 18-year-old becomes a walking life sentence if the charges to which he pled happened to be “strike” offenses; his next felony case might result in a life sentence. The DA gladly cuts time up front with the expectation that they will get him later; and if his record is made serious enough early on, that “later” can last the rest of his life.

I know that the premise of this question hurt some students’ tender sensibilities, but taking my lectures seriously would have given you plenty of material for to answer this question.

Question 5: Essay

Part I: Consider the the following hypothetical. The minor described below is a ward of the juvenile delinquency court and you are his probation officer:

    Jaime is a 15-year-old high school freshman. His mother probably should not have had children until she had a stable relationship and/or living arrangement. Jaime’s mom probably should have tried to have all of her children with one person, rather than several people. Jaime’s father should have attended his domestic violence classes like his probation officer wanted to. He also shouldn’t have died when Jaime was 9 years old. Jaime’s mother should have finished her drug rehabilitation program and should not have relied as heavily upon her own mother for child care. Jaime’s mom should not have dropped out of high school, because Jaime’s mom should not have had to settle for working a graveyard shift at the front desk of a shady motel by the freeway. Even though she insists upon working this job, Jaime’s mom really should be getting home in time to make sure that Jaime and his little brother are getting to school on time.

    Jaime should never have failed his first semester of high school. Jaime should have studied harder and placed a greater emphasis on his education. Jaime should not have gotten himself suspended for fighting; Jaime should learn to control his seemingly irrational bouts of anger. Jaime should not take his anger out on his family by punching holes in the wall. Most importantly, Jaime should not be cutting class to smoke marijuana.

Part II: Please comment on the following, and show how it would influence the way you would approach Jaime’s supervision:

When you use the word “should,” you are arguing with reality.

Unfortunately, I have no sample answers to discuss because none of you attempted an answer. This was disappointing given the preoccupation that most of the class expressed concerning criminal street gangs. Several students expressed interest in stopping violent gangs, mainly because of some awful episode of Lockdown: Life on the Inside that they insisted upon mentioning in class.  However, none of you realized that little Jaime is a prime candidate for gang membership. Kids love group identity, and young men love a sense of feeling power and control.

Imagine the many, many niches in Jaime’s life that would be filled by a gang. He would have family, safety, financial opportunity, and a steady drug source within one social circle. Eventually, Jaime will get caught. He will be arrested. He will be sentenced according to the astoundingly severe sentencing laws that Californians put on the ballot. As a result, Jaime will possibly serve 10, 15, or 20 years in prison on his first case. And with nothing to do for 10-20 years, and with no social capital other than gang membership, what do you think will happen once he gets to prison? Prison gangs are the Frankenstein of California’s criminal justice scheme, and fixating on what someone should do, taking decades from their lives for things that they should not have done won’t actually fix anything.

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Well, readers? What is your answer to Question 5? How would our approach to criminal justice issues change if we addressed the real world as it is, and not how it “should” be? Anyone? Anyone?

Please share your thoughts in the comments section. I would love to hear some new ideas.

Respectfully Submitted,

Norm DeGuerre

Criminology 101 – Advanced Theories of Street Crime and Hard Time.

“There was crime, but it sure as Hell wasn’t organized.”

This is a quote my client told me in an interview room at the jail while recounting his growing up as a gang member in an agricultural community about two hours away from my county’s Hall of Justice. Nearly all of the adults in his life had been unemployed and/or addicted to something. He and other kids who roamed the streets–instead of going to school–banded together, usually under the influence of some older brother who had just recently been released from prison. They wore the same colors and got the same tattoos. But this was no paramilitary criminal conspiracy; most of this group’s crimes revolved around drugs and fighting.

This client was baffled that the laws that had been passed to catch sophisticated criminal conspiracies were being used on him. He was accused of helping his codefendant sell $1500’s worth of stolen property to an undercover cop. And by “helped,” he actually sat in the codefendant’s living room drinking 40 ounces of something vile while the codefendant sold stolen property to an undercover cop. But because he and codefendant grew up with each other and had been members of the same “gang,” the district attorney believed that he was somehow furthering a criminal conspiracy merely by his presence, which happened to be on the couch, drinking.

Within days of that fateful bout of day-drinking, my client checked himself into rehab. Weeks after, he began the necessary court proceedings to get visitation rights for his daughter, who prior to that had been on the verge of being placed into foster care. He no longer had to live with his old gangbanger friend or rely on his old gang ties as currency for life favors. And then the district attorney indicted him.

He spoke with pride about the two community college classes that he had passed between bouts of incarceration. He mentioned having a fantasy in which he was able to share his life experience with future law enforcement in a classroom setting. And I had to wonder what that would look like.

Few if any of the professionals working in the field of criminal justice have any personal experience that allows them to relate to, let alone understand the people on its receiving end. Communicating that experience to others is a challenge that I will take up in my next post.

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