Fault Lines
25 April 2017

When Inmates Call (and The Prosecution Listens)

Jan. 14, 2016 (Mimesis Law) — If you want to upset a criminal defense attorney, call a jail a prison, or vice versa. It is the grammar equivalent of “bringing” something to where you are not.  Prison is for inmates who have been sentenced to more than one year of incarceration.  Jail is for defendants who have been sentenced to one year or less.  But jail is also where hundreds of thousands of defendants are held on bail they cannot afford while they await the resolution of the criminal charges against them.

Rikers Island is New York’s infamous jail island.  It is not a prison.  Rikers is comprised of numerous jail facilities on the 413 acre island that sits, ironically and cruelly, across a narrow waterway from a hub of modern-day freedom – LaGuardia International Airport.

Rikers, like many other jails and prisons, is not a nice place. That is kind of the point.  But we must be cognizant of the line between deterrence and torture.  Since we at some point release the vast majority of inmates, do we want them rehabilitated or do we want them angry, broken and on the road to recidivism?

The stories that have been coming out of Rikers Island over the past three years indicate a jail that has crossed that line.  It ruined a young man who was held in solitary confinement for two of the three years he spent on that island. His name was Kalief Browder and he took his own life less than a year after his case was dismissed and he was released.  There is a pending class action suit alleging that a corrections officer raped multiple incarcerated women at the island’s all-female jail facility. In November, a Rikers guard was arrested for smuggling synthetic marijuana and scalpel blades into the facility, but he was far from the only blemish on those tasked with keeping Rikers safe.

The arrest brings to 51 the number of Rikers staff who’ve been either arrested or sent for discipline since DOI targeted corruption at the city’s troubled jails in 2014.

While the corruption and surge in violence at Rikers make the headlines, the isolation and aesthetics that are a common theme of jail life are often overlooked. Rikers sits on a literal island, but jails everywhere are islands unto themselves, regardless of their geographic locale.  But Rikers, like so many things New York, has become the lightning rod amidst the nation’s growing tempest over our jail and prison facilities.  Some have even called for Rikers Island to be closed completely.

Just like the throngs of protesters demanding “justice” for police misconduct and violence, shutting down Rikers might change little about the cancerous problems that riddle our correctional facilities with an almost terminal disease. Demanding “justice” or the closing of one or all jails is not a solution.  It is catharsis.

People are mad, and they have every right to be. But rage often accomplishes little more than announcing one’s own rage.  Anger must be used to fuel meticulous thought and complex action into a dismantling of the myriad problems that exist.  The problems are daunting, no doubt.  But if you are trying to tear down a brick wall, lamenting the very existence of the wall will not bring it down.

Our prison/jail problems are allowed to persist because its victims are seen as criminals. To the willingly naïve, it is simple.  Don’t break the law, don’t end up behind bars.  But this ignores the fact that not everyone who is incarcerated is a criminal.  True, there are monsters that are appropriately locked away.  But there are also the wrongly convicted.  Then there are normal people who have merely committed a crime.  A fleeting moment of poor judgment or selfish wrongdoing should not eclipse the remainder of their life story.

And then there are the people who have not been convicted of anything.

Maybe in reality they did commit a crime, but as far as the government and our law is concerned, they are as innocent as you or I. So if we actually give a damn about the presumption of innocence, why do we allow something done to unconvicted inmates that we would never tolerate for ourselves?  We rarely think about some of the more mundane casualties of freedom that so many jail inmates must face.  One such violation is the recording of inmate phone calls.

Imagine if the government had its sights set on you. Now imagine that another arm of that government, a judge, decided to lock you away merely because the prosecutor told him that you had committed some crime.  While you await your fate in jail, your one connection to the real world, the telephone, is constantly monitored by the same government agency that is trying to figure out any way it can to keep you locked up for years, if not decades.

Law enforcement loves to defend this invasion of privacy by pointing to the warning. There is a sign at the phone bank in every jail and there is also a recorded disclaimer played at the front end of every call.  The inmates are clearly warned, this is not in dispute.  And the presence of a warning is all it has taken to clear up any issue cops, prosecutors and unfortunately judges might have had with recording the telephone communications of the legally innocent.

But it is not that simple. For a person who is locked up and being dragged through the criminal justice system, the most important thing going on is their case.  Yes, sometimes, the jailed party unburdens himself and confesses to his mom or brother.  But then there are the conversations about the case that a prosecutor, hearing things only through his finely tuned ears of justice, will try to convince a judge are relevant admissions of something bad.  Some judges will keep that gate properly and deny all information except clear confessions.  Some judges will not.  What can result is a trial where the actual evidence is secondary to the highly interpretable conversations of a caged individual.

Mind you, if a defendant spends ninety-nine calls professing his innocence, a jury hears none of that. But if he says something in one call that could be construed as even a tangential admission of guilt, that can be admissible evidence.

Beyond the realm of possible confessions, though, there can be hours of conversations that can let the prosecutor know who the defendant’s closest friends and family are. She can find out immense amounts of background information that might come in handy on cross examination.  This system of surveillance allows the government to detain someone and then sit back and simply gather information on them.  All because the defendant could not afford bail.

These calls also allow the prosecution to hear the defendant relay to his friends and family all the great tactics and evidence that his attorney has explained will help out his case. Again, I get that there is a warning, but defendants are not attorneys.  They do not fully understand the ramifications of speaking into that phone.  We cannot truly expect an incarcerated defendant to realize that by walking his wife or father through his unbeatable defense, he is actually making it beatable.

Finally, there is the equal protection argument that should be getting much more traction than it does. Do you know who does not have to worry about having their phone calls recorded as they await trial?  People who can afford bail.  How can we allow the government to record the phone calls of legally innocent people based solely upon their financial circumstances (or lack thereof)?

Law enforcement has successfully convinced our criminal justice system that the interest of blindly fishing for evidence overrides the right of poor people who are presumed innocent to not have their every phone call recorded. The argument has been that if people are stupid enough to confess to crimes when they know their calls are being recorded, that’s their problem.

But no. It is ours.  We have largely ignored the legal ramifications and complete lack of fairness this surveillance weaves into our criminal justice system, all to allow the government a warrantless evidence grab that would be unacceptable under normal, some would say, constitutional circumstances.

But ultimately, we have chosen to completely ignore the human impact that this monitoring has upon the most marginalized among us. The right to pick up the telephone and have a free conversation with the person of our choosing is something we all take for granted.  Imagine what it must be like if every time you picked up the phone, you knew that the government was out to get you.  And you knew that the government was listening.

3 Comments on this post.

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  • Cornflake S. Pecially
    14 January 2016 at 5:48 pm - Reply

    Sentencing hearings make the six o’clock news, bail hearings not so much.

    If people knew, would they care, that judges rarely wait until the trial is over to unleash the most insidious and tangential depature from justice of them all?

    For after the formal introductions are met, bail is set!

    And round and round, slithering both low and high, this perpetually consistent flaw weaves its way to ensure justice  continues serving vengeance as its master.

    Prosecutors smirk for they all know, the bail which is set, will not be met, and their tools of vengeful sloth needn’t even be lifted to strike the final spike.

    As they await the date, cozy with pride, until yet another soul delivers his own crushed fate upon a plater. Through the wire or even a cellmate does it really matter?

    The accused must serve his fate.

  • st
    15 January 2016 at 3:45 pm - Reply

    “The right to pick up the telephone and have a free conversation with the person of our choosing is something we all take for granted. Imagine what it must be like if every time you picked up the phone, you knew that the government was out to get you. And you knew that the government was listening.”

    It’s 20126. Edward Snowden informed us of mass surveillance 3 years ago. The NSA vacuums it all up. All of it.

    It’s not just inmates whose calls are recorded. All of us are monitored.

    I don’t mean to diminish the deprivation of basic civil liberties to presumed innocent defendants. My point is that a society that tolerates monitoring every call, email, web click, tweet, and text message of 320 million citizens will probably not react strongly to more intensive monitoring of less than 1 million inmates. This battle is lost so long as citizens acquiesce to massive surveillance without warrants.

  • Pretrial Detention and Why It's Like That – Windypundit
    15 February 2016 at 8:56 am - Reply

    […] time it started with Ken Womble’s post at Fault Lines about risks faced by criminal defendants who are stuck in jail awaiting trial when they call their friends…. Jail phones are tapped, and everything the inmates say on them is recorded. There’s an […]