Inspired by this thread, I thought I’d start this one.
I am a lawyer who occasionally (that is, it is not my entire practice) defends inmates at the local jail when they have been accused of in-house disciplinary infractions. Such infractions include, but are not limited to, graffiti-ing on the walls, mouthing off to a guard (or worse), possessing weapons or drugs or tobacco (it is a smoke-free jail), and tattooing each other.
All jail disciplinary hearings occur in an administrative tribunal, though inmates and the jail administration have the right to appeal all tribunal decisions to a proper court.
As in the other thread, I cannot break confidentiality with my clients, nor can I supply details of security arrangements. If I cannot answer a question due to these constraints, I will say so. But within those parameters, ask away.
Do these disciplinary offenses constitute crimes? E.g. are they charged in criminal court for “Any person who is an inmate, and shall violate the code of conduct of the jail or prison in which they are incarcerated in such a way that does not constitute a criminal offense under any other statute, shall be guilty of a misdemeanor”, are jail rules codified in federal, state/provincial or local criminal law, or are these prosecutions closer to other institutional discipline (e.g. dress code violation at a job, honor code violations at school, excessive sinning leading to excommunication from a church)
Do inmates have a legal right to counsel for these violations?
Do you also assist inmates with complaints against the jail? I know that a major problem in prisoner litigation (from the plaintiff’s side) is failure to exhaust administrative remedies, or even to recognize the importance of doing so.
I go in at the request of Legal Aid. Most often, the inmates don’t have the funds; but they do have a right to representation in these matters. If they want a lawyer, they get in touch with Legal Aid, who calls me.
It’s been said by several dopers who work, or have worked, in prisons that it’s not “The Shawshank Redemption” and that many (not all) prisoners really are different mentally from the main of society, and are effectively borderline sociopaths who are constantly trying to play anyone and everyone within reach for some advantage.
Respect usually, but occasionally indifference. With regard to the former, they know they’ve done something wrong, so they’re looking with respect to anybody who can help them. In the case of the latter, they’ve usually called a lawyer because it causes a slight delay.
Mostly one-offs. This is a provincial facility, and inmates will spend no more than two years in it (for sentences of over two years, they go to a federal penitentiary). Most sentences are less–12 months, 8 months, and so on. As a result, it is often the case that the inmate isn’t there long enough to get into a lot of trouble.
A few times, when I have been there, I have encountered inmates whom I have represented previously. They may be on a work detail (for example, mopping the floor), and we will exchange greetings as I pass by. That’s usually the extent of my second or subsequent encounters with inmates, though I will admit that a few have given me “repeat business” in disciplinary matters.
Sometimes, the offenses constitute crimes (for example, possession of drugs or assaulting a guard); but not all the offenses are crimes according to the Criminal Code (for example, being disrespectful to a guard, or possessing tobacco). Offenses are codified and listed in section 47 of the Correctional Institution Regulation, AR 205/2001; and they’re pretty general (“no inmate shall use indecent gestures,” for example).
Of course, criminal offenses are codified in the Criminal Code of Canada and other statutes; and occasionally, inmates charged with these offenses will be prosecuted in a proper court. But not always–the guards do have the discretion to not escalate the matter into the court system if they feel the matter does not need to be there. For example, possession of marijuana is a criminal offense, but a small amount found in the possession of an inmate will generally only result in an in-house disciplinary hearing–not a court case. Not escalating the matter occurs in the vast majority of matters–I can recall only one matter that was escalated into the courts, and that was when the inmate hauled off and slugged a guard twice. (CC s. 266, assault.)
Mostly, the proceedings I attend at are closer to institutional discipline. They are not as formal as court proceedings–there is a neutral adjudicator, me for the offender, the offender himself, and a recorder (like a court reporter). Most evidence is given by way of written report (i.e. documents produced at the time that the inmate was “written up”); but the guard who composed the document is occasionally called, or even another inmate who witnessed the incident may be asked to attend. And physical evidence is sometimes present as well: baggies of marijuana or tobacco, or a homemade weapon, are things I have seen many times.
A number of reasons. The inmates have the right to representation, and I’m willing to represent them–few other lawyers will, so I guess there is a sense of duty towards the unrepresented on my part. It is not pro bono, but it is close, as Legal Aid doesn’t pay much. More practically, it is a change of scenery: certainly, it is vastly different from my office and the courthouse!
It is similar to the whole legal process, but there are slight variations. I’ll step through what happens:
The inmate commits an offense. A guard either catches him in the act (say, smoking a joint in the exercise yard), or after the fact (say, the inmate has graffitied his cell wall and the guard notices it during an inspection).
The guard writes the inmate up. These involve standard forms–name, number, unit, cell, and so on; along with a “freeform” area on the paperwork where the guard writes, in his own words, what happened. For example, “On Wednesday, November 23, 2011, at approximately 1400 hours, I was inspecting the cell of Joe INMATE while he was at work in the wood shop. I noticed some graffiti on the wall. The graffiti said, ‘Officer Smith is an asshole.’ When INMATE returned from work at approximately 1600 hours, I confronted him about the graffiti and asked him to clean it from the wall. He did not do so at first, but complied when I asked again…” And so on. The inmate is given copies of the paperwork.
A hearing is arranged. The inmate is informed of the date and time, and told of his right to a lawyer. If the inmate wishes one, he can use a telephone to contact his lawyer, or to contact Legal Aid, who will arrange for one.
This is where I come in. Legal Aid contacts me, and asks if I can represent Joe Inmate, on such-and-such a date, at such-and-such a time. If I can, Legal Aid then issues me a “certificate,” which I use for billing purposes, and informs me of who the recorder (a guard who records the proceedings) will be.
I get in touch with the recorder, just to confirm everything. Often, the recorder will describe the matter briefly to me; and sometimes, fax me the paperwork. If he doesn’t, the paperwork will be waiting for me when I arrive at the jail.
The hearing will be scheduled for a certain time, but I will arrive earlier than scheduled–usually, a half-hour–so I can meet with and interview the inmate. I want his side of the story. I take a lot of notes in the interview. The recorder will be aware of this, and have the inmate ready to meet me before the hearing. The interview takes place is a sparsely-furnished office: there is a desk, a few chairs, a telephone, an intercom that connects with the guard station, and a big, red, panic button. No guards are present during the interview, but they can be quickly summoned should the need arise. So far, it never has.
Adjournments are rare–this is one difference from a regular court, where adjournments are quite common. So, we are going into the hearing ready to Admit to (i.e. plead guilty) or Deny (i.e. plead not guilty) the charges. The use of the terms “Admit” and Deny" are another difference from a regular court. But we are not going to adjourn the matter until a future date.
The hearing itself takes place in another office. The adjudicator (not a judge) attends via closed-circuit TV (CCTV), as adjudicators for these matters are in another city (typically, Calgary). All parties identify themselves for the adjudicator and the record, always spelling out last names:
Adjudicator: Good morning, I am Sam Jones, adjudicator today. Would all parties please identify themselves?
Inmate: I’m Joe Inmate, I-N-M-A-T-E, number 123456.
Me: I’m Firstname Spoons, S-P-O-O-N-S, representing Mr. Inmate.
Recorder: I’m Bob Smith, S-M-I-T-H, recorder of these proceedings.
With all parties introduced for the record, we can get going. The inmate is asked to Admit to or Deny the charges. If the inmate Admits, then we proceed to a sentencing argument–I argue why the sentence should be as light as possible (the inmate and I will have discussed pertinent facts in our interview). If the inmate Denies, then a mini-trial is held: evidence is produced, witnesses may be produced, and so on. I can question anything or anybody produced, and so can the inmate–he can speak up at any time, if he wishes.
The adjudicator renders a decision. If the decision is that the inmate is not guilty, the matter ends. If the inmate has Admitted, or is found guilty after the little trial, we proceed to sentencing. Sentences are typically not like one would get from a court–let’s face it, the inmate in in jail already. So, they tend to involve loss of privileges (say, no open visits), a few days in solitary, the threat of a few days in solitary (“keep your nose clean for sixty days, and you won’t have a problem; offend again within those sixty days, and you’ll go to the hole for a week”), and so on. I argue for as light a sentence as possible , playing up the good qualities of the inmate (“It should be noted that Mr. Inmate has been here for eight months and caused no trouble during that time, so this is his first offense in here; and he has been helping illiterate inmates to learn to read during their recreational time…”). At any rate, the sentence is handed down, and the matter ends. The inmate has the right to appeal the matter into a court, if he wishes.
The whole thing happens quite quickly, relative to a regular matter in a court. These hearings usually take an hour or less, and none has ever taken more than two hours. But everybody can have their say, and the inmate’s constitutional rights are protected.
Maybe one in ten is factually innocent. Given the constant scrutiny by TV cameras and guards, it becomes quite difficult for an inmate to honestly say “I didn’t do it.” Still, sometimes the inmate is found not guilty–either there is not enough evidence to pin the offense on the inmate, or the guard looking at the TV monitor mistook one inmate for another (“I wasn’t smoking a joint in the exercise yard when the guards said I was; I was working in the kitchen–check the work detail schedules”).
No. Mind you, this is not a maximum-security, long-term facility, so it’s not going to have the serial killers, the serial rapists, and similar. For the most part, inmates in the local jail are there for assaults, drug crimes, drunk driving, large thefts, and other not-quite-so-serious crimes. All are serving sentences of less than two years.
Most of the inmates I’ve dealt with haven’t been much different than anybody else. They have hobbies and interests, they have families, they have plans for work or school when they get out. A few have been somewhat different from the norm, but not many, and none seriously.
Things are probably very different in a maximum-security, long-term facility, though.
astro’s question was mainly about wether the inmates are sociopaths. I wonder about the intelligence of the inmates. Especially if they’re in jail for stealing a car, and then they’ve been “naughty” by drawing on the wall of their cell. Just doesn’t sound like the sharpest knife in the drawer…?
I also wonder what you think about having these full-on trial-type things with a real lawyer, for non-crimes (in some cases more like “naughtiness”).
I was thinking, I’m at university, another kind of institution, but if I mouthed off a professor or drew on the wall of the lecture hall (ok granted, pretty strange, but go with it) there wouldn’t be a trial, I’d probably just get some kind of consequence handed to me.
Same when I used to work in a children’s home for kids with problems with violence: you were naughty, you got a consequence. It could be discussed and everything, but they didn’t need a real lawyer. Can you explain why the complicated system is necessary? Do all prisons do that? (Sorry if this is a really silly question, I know I’m comparing apples and haribo cherries with the other institutions, I’m just curious)
Just want to chime in with: “Well how nice for them…”
I can tell you for every day court cases where everything you own and every dime you have is on the line no one thinks you “deserve” representation. Far from it.
Just kind of flabbergasted that this type thing would be a priority over legal help to those of us who have never gotten themselves in a situation where they might mouth off to a prison guard.
Not to say these folks don’t need counsel too. Sigh.