Pretrial Detention and Why It’s Like That

I’ve been blogging about criminal justice issues for a long time now, and I like to think I know a few things (for an amateur observer) but every once in a while I am amazed to discover that some seemingly normal part of the criminal justice system is, on further examination, inexplicably perverse.

This 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 and family. Jail phones are tapped, and everything the inmates say on them is recorded. There’s an exception for legally privileged conversations between defendants and their lawyers (mostly), but other than that, anything inmates say to their friends and families is fair game for the prosecution. Womble gives a few examples of the kind of trouble that can lead to:

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.  […]

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.

Except for some details, most of this was not news to me. I’ve heard lawyers’ stories of charges filed and cases lost because inmates said something incriminating over the jail phones. Every criminal lawyer will tell their clients not to talk to cops, but inmates desperate for contact with the outside can easily forget that talking on the jail phone is talking to the cops.

What got my attention was Womble’s introduction of this issue in an earlier paragraph:

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.

I couldn’t get that idea out of my head, so I was still thinking of it when I got to this:

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)?

If you’re in jail because you can’t make bail, the government can listen in on every one of your phone calls. But if you’re out on bail, law enforcement authorities need to get a warrant to listen to your phone calls, just like they do with anyone else. What’s the legal justification for that distinction?

My guess is that authorities are allowed to listen in on inmate phone calls because inmates have essentially no right to privacy. Guards can search their cells and their bodies any time the want, so why not their phone calls too? But that just begs the question: What’s the legal justification for giving pretrial detainees so little privacy?

In other areas of law, infringements of rights must be limited to what is necessary to serve a constitutionally permissible purpose. E.g. when the government limits freedom of speech to prevent fraud, that limitation is supposed to be narrowly tailored to only limit rights as necessary to prevent fraud.

So if we accept that the government has a legitimate interest in making sure that defendants show up for their trials, then detaining them in jail may reasonably serve that purpose, and it makes sense to impose restrictions on detainees to prevent them from escaping. However, skimming over the New York City Department of Corrections inmate rule book and visitor’s rules, I was able to hastily put together a short list of restrictions that seem unrelated to that purpose:

• Inmates can only receive gifts from visitors if the gifts are on a list of 24 categories of items that may be brought in.
• Inmates are not allowed to have personal shoes. They have to wear jail-provided footware, and that doesn’t include shower shoes like thongs.
• There are limits to the jewelry they can wear — small wedding rings and religious items.
• They can’t have clothing that is red, yellow, or light blue, nor can they have camouflage patterns or spandex leggings.
• They can’t have tobacco products or alcohol.
• Inmates cannot receive toiletry or food items.
• They’re not allowed to have telecommunications equipment such as a phone, text messaging device, camera, or tape recorder.
• Inmates can’t have photographs that include pictures of themselves, and Polaroid photographs are prohibited.
• They aren’t allowed to have money, checks, or credit cards.
• They aren’t allowed to have unauthorized art supplies or writing instruments.
• No sex, even if it’s consensual.
• No buying or selling of goods or services.
• Inmates are subject to drug and alcohol testing.
• Visiting hours are limited and visits are controlled.

It’s possible I’m misunderstanding some of the rules — I read through them pretty quickly and I don’t know much about life in jail — but it’s hard to see how these rules are related to preventing escapes. Perhaps I’m missing a few things — maybe large jewelry could be used as a weapon to threaten a guard, and then once the inmate makes it to the treeline the camouflage would help him hide. Nevertheless, most of these restrictions seem to have little bearing on the goal of ensuring that inmates stand trial.

I understand that there may be good reasons for some of these rules — preventing inmate-on-inmate violence, preserving a sense of order, and making the guards’ jobs easier — but those don’t sound like good reasons to deny legally innocent people their rights, especially since we have rejected those same restrictions for all the innocent people living outside the jail walls.

(I’m pretty sure there are some unsavory motives at work as well: Forcing inmates to buy consumer goods from the jail commissary, forcing them to use over-priced jail phone services, and encouraging them to take a plea deal to get out of jail.)

I realize this is old news to people who know the criminal justice system better than I do. I wonder, however, why this isn’t a more contentious issue? Perhaps I’m just not reading the right news sources. Changes to jail rules might affect thousands of inmates and their families, but they rarely make the news. Or maybe this is settled law, and there’s not much to be gained by litigating.

I’m not sure what reform in this area would look like, but it’s not hard to envision a jail system that prevents inmates from escaping without imposing so many unrelated restrictions. I imagine something resembling a high-security secured college dorm or SRO residence, with private rooms, personal property, phones and internet, pets, and unlimited visitation from family, including overnight stays.

I realize that this vision of comfortable confinement may not be achievable, but that usually isn’t enough to stop reform movements. I’m surprised I haven’t stumbled them somewhere. And nobody said respecting people’s rights was easy.