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Some real effects of the US approach to crime - Part 1

By Kirsten Edwards - posted Saturday, 15 July 2000


The first category of prisoners - the actually innocent - have been getting a lot of press lately in the States. The list of recent scandals includes 85 death row prisoners conclusively proved innocent (including 13 since 1977 in Illinois only); the Innocence Project's DNA exoneration of 69 people convicted of serious crimes (mostly rape and murder); 241 homicide convictions overturned after prosecutors lied or misled the jury; a forensic pathologist who faked 10 years of lab results resulting in 170 rape and murder convictions; the FBI study where DNA testing exonorated a quarter of police 'prime suspects'; 40 confessions obtained as a result of police torture in Chicago; numerous scandals involving brutality, torture and corruption in the LAPD; and a series of fingerprint planting revelations by police from California to upstate New York.

Ironically, at a time when people are realizing that there is good chance that a great number of people in jail actually 'didn't do it' there is an increasing push for the rights of defendants at trial - the protection against false convictions - to be limited. Even people like Al Gore are saying defendants in the US have far too many rights and it is time to scale some of them back. If this push is successful in making legal changes, such as the proposed victims rights consititutional amendment, it is highly likely that the number of actual innocents in jails will increase.

But spare a thought for the other type of innocent - the presumed inncoent. There are four times as many people in custody who have not yet been convicted of any offense than those who have been convicted. The vast majority of prisoners in the US are presumed innocent.

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There are good reasons to be presumed innocent before conviction. The best one is many people are actually innocent and can only prove this if they are granted a fair trial. Another reason is the importance of the State knowing that it can’t just lock someone up – they need to prove their case. Considering that 94% of cases are plea-bargained, the fair trial we see on TV rarely happens. Without lawyers testing evidence in court we rely on the State to have solid proof before charging anyone with a crime. But mandatory minimum sentences are so high that many people, including innocent people, plead guilty to a lesser charge just to avoid serving incredibly long prison terms. This puts all the bargaining power in the hands of the state - especially when defendants have already spent several months in jail - and there is little need for solid proof in order to obtain a guilty plea. This could help explain why the US has been plagued by scandals of police and prosecutorial misconduct - without the scrutiny of zealous defense lawyers (as opposed to overworked and underpaid public defenders) it is easy for law enforcement to get lazy and focus on just getting a conviction - any conviction. The police seem effective and the prosectuion has a high 'win' rate. But what happens to the people inside?

Anecdote:

Jonathan Hicks is a 28-year-old father of two. He is paralyzed from the waist down and confined to a wheelchair. Jonathan was charged with a very serious crime – aiding and abetting a rape. The evidence against Jonathan had many flaws – the most extreme one being a statement from a witness that claimed Jonathan had got out of his wheelchair and walked across a room towards the victim. The police didn’t care about any flaws in the evidence - they assumed Jonathan was guilty, arrested him and threw him roughly into a paddy wagon. Jonathan’s custom-made wheelchair was broken by the police. Jonathan spent the ride to the station handcuffed and in terror as he was thrown about in the back of the wagon without being able to use his legs to balance himself.. It seemed to him like the police were swerving around on purpose. Because Jonathan didn’t have a working wheelchair he was taken to his arraignment on a stretcher and forced to lie on the floor, utterly humiliated, during the hearing. The judge looked at this disabled man lying dejected on the floor and denied bail.

Jonathan spent seven months in jail. He was regularly left lying prone on his bed for days, unable to move about his cell. There were no adequate disabled-equipped shower facilities or even room in one to fit a wheelchair and he went two months without being allowed to have a shower at all. Jonathan was not provided with the equipment he needed to disimpact himself and he was regularly forced to lie in his own excrement, once for 10 days on end. Eventually he smelled so bad that a petition was formed by prisoners to request that Jonathan be allowed to shower. Jonathan had to be hospitalized for an aggravated pressure sore caused by spending too long sitting in an inadequate wheel chair and a resulting infection from constantly lying in squalor. Straight after release from hospital he was forced to sit on the pressure sore for seven hours. Perhaps worst of all, on the way to a court hearing guards failed to strap on a restraint on his wheelchair and took a pothole-ridden route instead of the longer wheelchair route. Jonathan was thrown from the chair and broke his leg. All this occurred, remember, before Jonathan had been tried, he was presumed innocent. This took place in 1997, in Connecticut, America’s richest state.

After his first trial ended in a hung jury, and faced with the threat of a long prison term in intolerable conditions, Jonathan’s lawyers begged him to plead guilty and he vehemently resisted. Eventually he agreed on the condition that his plea be officially recognized as one that did not contain any admission of guilt. Jonathan had been such a passionate and inspirational advocate for disabled rights that when he was sentenced the hearing was moved to New Haven’s biggest courtroom, and every seat was filled. Hundred of letters were sent to the sentencing judge on Jonathan’s behalf. More than 15 people testified: most, including disabled people who had been themselves victims of rape, wept as they pled for leniency. They wept again when Jonathan was sentenced to 18 months in jail. A law suit filed on behalf of Jonathan by by pro bon lawyers from the Yale Law School disability advocacy clinic foundered when the State prison system used a claim of legal immunity. Jonathan is still in jail and he is still battling to be allowed basic rights - such as to take a shower.

Not all people in prison are disabled, not all are nice, and many are not innocent. But a lot are. Jonathan’s story shows that pre-trial detainees are far from gaining special treatment, let alone the basic dignity that the presumed innocent should be able to expect. At least he was spared the rapes, beating and abuse from inmates and guards that most other prisoners experience. With well over one million pre-trial detainees in custody there are probably many more stories just like his one. Oh, and I should have mentioned: Jonathan is black . . .

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This is part one of a four-part essay. Part 2 will discuss the effects of race and drugs on incarceration rates in the US. Part 3 discusses the effects of mental illness and domestic violence on incarceration rates in the US and Part 4 examines the implications of this policy for American democracy.



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About the Author

Kirsten Edwards is a Fulbright Scholar currently researching and teaching law at an American university. She also works as a volunteer lawyer at a soup kitchen and a domestic violence service and as a law teacher at a juvenile detention centre but all the community service in the world can’t seem to get her a boyfriend.

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