Law & Fiction — revisiting two topics

LAB in the back of a police car at Writers’ Police Academy (2016), smiling because I knew I could get out any time

From time to time, I write about legal issues writers may want to use in their fiction, or mistakes to avoid. I spotted two recent articles on topics I wrote about in Books, Crooks & Counselors: How to Write Accurately About Criminal Law and Courtroom Procedure (Quill Driver, 2011). Whether you’ve read the books or not, you may want to know a little more about when teenagers can be charged as adults, as described in this NPR piece about the teenage shooter in Oxford, Michigan, which provides a good overview. The trend toward “Raise the Age” legislation is new since BCC; many states have now set a presumptive age, typically 17 or 18, at which a juvenile can be charged as an adult; below that, such a charge is still possible but certain criteria must be met.

I also wrote about drug courts, an approach aimed at keeping nonviolent offenders charged with drug offenses out of jail and on the road to recovery and productivity. This piece from the Washington Post focuses more broadly on addiction in northern New Mexico, but the highlights on the drug court and its judge are worth a look. (It’s part of a Post project on the importance of regional stories and what is or could be lost when local papers shut down, another important topic.)

As always, check law and practice in your story state. We may be writing fiction, but getting the facts right matters.

Juvenile inmates & solitary confinement

OldMTPrisonNPR reports on an agreement by New York state to prohibit the use of solitary confinement for juveniles in response to a lawsuit by the ACLU. As many as 4,000 inmates have been put in solitary confinement — aka “segregation,” “prolonged isolation,” or being “in the box” — for 20-22 hours at a time, often for minor prison infractions. While in the box, they are fed through a slot, and get no exercise or sunshine. The agreement bans its use as punishment for juveniles under 18 — although they may still be held alone, within guidelines limiting cell time and allowing access to exercise and programs outside their cells; provides alternatives for disabled individuals; and limits its use for pregnant women to extreme cases. Solitary will still be available for use with other inmates and in other circumstances. The agreement also imposes record-keeping and reporting requirements on the state prison system.

The report says change is happening across the country, in part due to research showing that solitary often makes inmates sick, increases the risk of suicide, and can make inmates more dangerous after their release. There have been reports of inmates across the country held in solitary for years.

Here’s a horrifying first-hand account from a man first held in solitary at age 6, and repeatedly as a teenager; more about the problem from the NY ACLU; and an account of the settlement from the ABA Journal.

These two updates from NPR report on the costs of solitary and testimony at a Senate hearing considering changes in the state and federal systems. Senators heard from a man who spent 15 years in solitary, on death row, before his exoneration, discussing the emotional effect and other issues. Interesting statistic: solitary costs 3 times as much as general confinement. I’m glad to see a larger conversation in our society about the balance: when is solitary an appropriate “tool” and when is its use actually abuse.

Join me on Facebook for a chance to win a taste of Montana. Each new “like” will be entered in a drawing for a gift pack from Eva Gates Homemade Preserves. 

Bail, juveniles, and judicial compassion: a tough intersection

Update 2: The Missoulian reports that on May 24, Isaiah was released following his evaluation, and went home with his grandmother, where his first priority was to get back on his skateboard.

Update: The day after I posted this, Isaiah was transferred to a residential facility for evaluation, and the $500,000 bail was removed. More details from the Billings Gazette. 

I’ve written occasionally, here and in Books, Crooks & Counselors, about factors that go in to decisions on bail, on the juvenile court system, and on the hard decisions judges sometimes have to make. A case playing out in my county right now illustrates the particularly tough situations that sometimes arise.

A young boy — 10 years old — is currently being held in the juvenile portion of a state mental health facility pending a psychiatric evaluation. He has a history of escalating violence, including throwing chairs at school and kicking other students. For a prior incident, he and his family agreed to probation — which he violated through the latest incidents. The District Judge set bail at $500,000 — an amount the family cannot meet — to ensure that he gets a psychiatric evaluation, which cannot be held for at least two more weeks.

Hal a million dollars? For a juvenile? For relatively minor incidents, with no personal injuries involved? It seems extreme, at first glance, and the family is protesting mightily — in court, outside the courthouse, and on Facebook.

But it makes more sense when you hear more facts — especially because a psychiatric evaluation is key to determining what treatment the child needs to resolve his problems — and the family has missed getting him to many of his regularly scheduled counseling sessions and three previously scheduled psych evals. The judge appears to be properly focused on the boy’s best interests, drawing on her experience and compassion as a judge, and no doubt, as a mother.  Story here from the Billings Gazette. I’ll keep you posted.

(Astute readers may wonder why this case is in state court, not tribal court, which typically handles juvenile cases on reservations, like the Flathead, which have ceded felony jurisdiction to the state but kept jurisdiction over misdemeanors and juveniles. Apparently the child is not an enrolled member of a tribe, although he is eligible for membership in a tribe in another state; he is considered a “descendant,” not a member, so jurisdiction belongs to the State of Montana rather than to the local tribal authorities.)

Life without parole for young killers?

In real life and in fiction, young people commit serious crimes. In late March, the Supreme Court heard arguments about whether juveniles–14 year-olds, in these two cases–can be sentenced to life without parole for murder. The SCOTUS blog–always a great source–provides a roundup of coverage and a detailed report on the arguments.

The cases ask whether a state should be able to impose a mandatory sentence of life without parole on juveniles, e.g., those under 18 at the time of their crime. Should it be optional? Barred entirely? Or barred only for very young offenders, e.g., 14 and under?

The cases, Miller v. Alabama and Jackson v. Hobbs, are the third in recent years asking what limits should be put on sentences for juveniles.

As I discussed in Books, Crooks & Counselors, in Roper v. Simmons (2005), the Court struck down the death penalty for crimes committed before 18. It held that the death penalty for juveniles violates the Eighth Amendment ban on cruel and unusual punishment and is “disproportionate” in light of the general immaturity of youth. It acknowledged that some juveniles commit brutal crimes, but wrote that their

“susceptibility … to immature and irresponsible behavior means their irresponsible conduct is not as morally reprehensible as that of an adult. … From a moral standpoint it would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that a minor’s character deficiencies will be reformed.”

The majority also concluded that juvenile executions do not serve the goals of retribution or deterrence.

And in Graham v. Florida (2010), the Court that juveniles could not be sentenced to life without parole for crimes not involving murder, and that inmates already under such a sentence must be given an opportunity to show grounds for early release. 

Something for your fictional prosecutors, defense lawyers, and other characters to consider.

I’m in Oregon this week for Don Maass’s Breakout Novel workshop. Wow. My characters may never recover–and that’s a good thing!