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August 15, 2019

Shouldn't all prosecutors (and judges and defense attorneys and police and probation officers) make regular and repeated visits to prisons?

Last month the folks at FAMM started the #VisitAPrison challenge which calls on lawmakers to visit a prison or jail and which rightly highlights that many legislators who make and change laws governing incarceration often have no direct or personal experiences with prisons or persons incarcerated therein. I consider the FAMM campaign very valuable and important, and this interesting new piece by Daniel Nichanian at The Appeal Political Report prompted the follow-up question that serves as the title of this post.  This piece is headlined "Prosecutor Sends Staff to Prison, in a Bid to Counter Their Reflex to Incarcerate,"and I recommend it in full. Here are excerpts:

Sarah Fair George, the state’s attorney of Chittenden County (home to Burlington) in Vermont, has instructed all staff and prosecutors who work in her office to visit the St. Albans prison, also known as the Northwest State Correctional Facility. “Most prosecutors have never stepped foot in the buildings that they sentence people to spend years in,” she wrote on Twitter. “That needs to change.”

I talked to George on Wednesday about her initiative, and how it could change practices in her office. She said prosecutors often treat prison time “nonchalantly,” as something abstract, and get in the habit of “just throwing out numbers.” “We say six months or two years, and don’t really have to think about what it means for the person,” she explained.

“It’s important to stand in that space and see it for yourself, and feel it for yourself,” she added. “My hope is that people recognize that six months is a long time to spend in jail. Maybe thirty days can be enough time, maybe no jail. Just being more cognizant of the space you’re sending people to when you put an arbitrary number on an offer sheet.”

George said this perspective should fuel shorter sentences, but also restrain prosecutors from seeking incarceration in the first place. “They spent an hour and a half there and were relieved to get out,” she said of staff members who have already visited St. Albans as part of her initiative. “So let’s imagine how this might impact somebody who is there for six months or a year, and how this impacts them as a community member when they get back out. Is there a way that we can avoid that entirely, and not risk them coming out a more violent person or with some type of trauma having been in jail? Can we find another way?”...

The interview has been condensed and lightly edited for clarity.

Q: You announced that you have instructed prosecutors in your office to visit a prison in the next month. What is the impetus for this, and what insights do you wish them to glean?

A:  For me, it has gone back to my own experience having been in some of these prisons. It has shaped a lot of my reform policies and how I approach prosecution in general. When I was in grad school, I went to multiple prisons and was on the mental health wards at those prisons, which were in some cases pretty appalling. Then, when I was at the public defender’s office, I went to several prisons and met with clients and heard the stories of either how they were treated in jail or the conditions of jail, solitary confinement, stuff like that. I came into being a prosecutor with that background, and with that idea of what some of those prisons are like.

I have always thought it is important for people to understand what probation does, and what some of our community partners do, and that’s always been stressed. But it’s never been stressed that they should also fully understand what prison means, and what a jail sentence means for these individuals. As prosecutors, we get very comfortable with just throwing out numbers as an amount of time. We say six months or two years, and don’t really have to think about what it means for the person, that six months for one person could be detrimental to their entire lives.

What are you thinking of when you say it’s important to understand what prison means for individuals? What it is that you think people in your office should have to witness?

Literally just seeing the facility, and understanding literally where they’re sending people. But also being in one of those cells and sitting on the bed in a cell and seeing how small that space is, and seeing a solitary confinement room and seeing how claustrophobic you get in five minutes in that room. Hearing those sounds in the jail of those doors closing, and how cold and harsh all of those sounds are. Seeing inmates in that environment. In Vermont, there is this idea that jail isn’t that bad, and in some sense we’re very lucky, but that’s a lot easier to say on the outside. You spend an hour and a half in the jail and you find yourself relieved to come out. You know you were always coming out, but you have that experience and you think, “Okay, maybe that TV and that good food is not as important as I thought it was when I just lost my freedom for an hour and a half, knowing full well I’ll be coming out and I’m still relieved.”

As a prosecutor, the only time I’ve been to a jail is for a deposition of an inmate, or an inmate who wants to do a proffer. Those meetings are very structured, they’re in a space right inside the jail, so you’re not going very far. There’s really nobody else around. That doesn’t count for me, that’s a very easy way to say you’ve been in a jail without actually being in a facility. I think it’s important to really stand in that space and see it for yourself, and feel it for yourself.

Q:  How exactly do you think prosecutors should take these things into account in the course of their work? At what stages of their discretion should this weigh in?

A: It may not start necessarily with the charging decisions, but I think in some cases it could. If you know for example that this person’s parole could be revoked and they may go back to jail, or you know that they might be held in bond or some other violation, then maybe it does charge at the charging decision. But at the very least, I think that when you’re giving an offer on a case and you nonchalantly say six months as if that’s not a lot of time, my hope is that people recognize that six months is a long time to spend in jail. Maybe thirty days is enough time, maybe no jail. Just being more cognizant of the space you’re sending people to when you put an arbitrary number on an offer sheet.

But also understanding where people are coming from. Somebody may have a long record, and that record has led to incarcerative sentences several times in their history — maybe you can have a better understanding of why they are in the place that they’re in, having spent all that time in jail. Maybe doing it again isn’t going to do them hasn’t favors. That hasn’t worked, that person is back. Maybe we need to find another way to address this particular person.

August 15, 2019 at 11:20 AM | Permalink

Comments

Wh are the defense lawyers who don't go to the jail? So stupid.

Posted by: whatever | Aug 15, 2019 4:28:08 PM

whatever: I suspect a number of defense lawyers do not make regular and repeated visits to prisons --- e.g., I know defense lawyers with primarily white-collar practices and appellate practices who do not regularly have reason to visit clients in prison. Moreover, even defense lawyers who do go to prisons regularly sometimes will be there only in structured environments.

That said, your comment rightly highlights that defense attorneys are the players in the system with the most direct experiences with incarceration.

Posted by: Doug B. | Aug 15, 2019 5:25:46 PM

In my experience, it’s rare you can make it past the sterile visiting room in most state prisons and local jails. Certainly it’s that way in federal prison. Prosecutors may have it easier. The deepest and easiest trip inside a prison I had was on death row in Utah. Nearly walked right. Very cordial. I wasn’t even searched.

Posted by: Dennis Cauchon | Aug 15, 2019 10:48:36 PM

In my experience, it’s rare you can make it past the sterile visiting room in most state prisons and local jails. Certainly it’s that way in federal prison. Prosecutors may have it easier. The deepest and easiest trip inside a prison I had was on death row in Utah. Nearly walked right. Very cordial. I wasn’t even searched.

Posted by: Dennis Cauchon | Aug 15, 2019 10:48:36 PM

My recollection from my days as practicing lawyer (> 40 years ago (!)) was that Chief Justice Richard J. Hughes (NJ Supreme Court) refused to let judges sit on criminal cases until they had visited a jail or a prison (or to commit individuals to psychiatric institutions until they had visited one of them). If only this were obligatory everywhere...

Michael L. Perlin,
Professor emeritus, New York Law School
Deputy Public Defender, Trenton NJ 1971-74
Director, NJ Division of Mental Health Advocacy, 1974-82

Posted by: Michael Perlin | Aug 16, 2019 9:58:39 AM

"In my experience, it’s rare you can make it past the sterile visiting room in most state prisons and local jails", so true. One example: Client had to write a demand letter for his attorney to come to the jail and discuss his case. The attorney finally showed up after many requests and he acted paranoid to touch anything. He sat at the window with a wipe and was cleaning the phone and ledge in front of the window the whole time. He was bias and only intended to let client go to prison, very incompetent! By the way, his daughter became DA. She was also incompetent and bias!

Posted by: LC in Texas | Aug 16, 2019 11:34:08 AM

As an individual person, you will not make it past the visiting room in most facilities. However, my experience in different jurisdictions is that correctional facilities will do tours for some groups. For example, if a local court wants to organize an annual September tour of the jail for the new prosecutors, law clerks, and PD, most jails will not tell the judges no. Similarly, if there is a group that works with the prison (e.g. when I was in law school back in the dark ages, my law school clinic provided representation to inmates at parole hearings which the prison systems saw as a value added), the prison may do a tour for workers in that group.

What would be required to set-up a tour will vary from state to state and county to county.

Posted by: tmm | Aug 16, 2019 1:00:45 PM

"George said this perspective should fuel shorter sentences, but also restrain prosecutors from seeking incarceration in the first place."

Speaking as a career prosecutor who has been in almost every state prison in California and regularly gone to our local jail, I respectfully disagree with my colleague's supposition.

Posted by: Cal. Prosecutor | Aug 19, 2019 12:15:52 PM

I am the mother of one of the Yuma 7 who have been charged with the riot that happened March 2018 in the State Prison. 600 inmates. 7 identifiable and charged with participation taking the brunt of 600. Your blog hit home when I read the part of how the prosecutors can throw out years so nonchalantly. My son has already been in for 11. He was to get out in 12. But now 6 1/2 flat time is the plea? Sure that sounds good when they say you could get 25. And 25 sounds good when you could have gotten 100.
I too believe they all need to "Visit A Prison" I want her to see and feel where he's been for 11 years and what shes trying to give him to make him stay longer just because he was there.

Posted by: Sunny | Aug 29, 2019 7:56:13 AM

I am the mother of one of the Yuma 7 who have been charged with the riot that happened March 2018 in the State Prison. 600 inmates. 7 identifiable and charged with participation taking the brunt of 600. Your blog hit home when I read the part of how the prosecutors can throw out years so nonchalantly. My son has already been in for 11. He was to get out in 12. But now 6 1/2 flat time is the plea? Sure that sounds good when they say you could get 25. And 25 sounds good when you could have gotten 100.
I too believe they all need to "Visit A Prison" I want her to see and feel where he's been for 11 years and what shes trying to give him to make him stay longer just because he was there.

Posted by: Sunny | Aug 29, 2019 7:56:13 AM

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