Process: Investigation and Arrest

  The question of your innocence or guilt, the level of seriousness of the charges that may be brought against you, or whether or not you will spend time in prison, is in all practicality determined during the investigation and arresting process. All the players, at every further step of legal procedure: prosecutor, judge, even your defense counsel (if you have one) presume that if you have reached the point of arrest, you are likely guilty, if not of the specific charge, then of something else that brought you to the attention of the police. All the rest is just process and conflict resolution, a war between lawyers, the spoils of which are salary, prestige, and careers, and in which you have become an unwilling pawn. Law enforcement is a numbers game: to justify their existence, they do not have to show that they are actually making streets safer, they just have to show that they are getting convictions and putting people in jail. Those are two very different things, analogous to the body counts that were being touted during the Viet Nam war: the numbers didn't show that we were achieving our objectives, only that we were inflicting plenty of collateral damage.

   And that is why it is so important to understand what goes on during the investigation and arrest procedure, to understand what police can and can't do, and, to whatever degree possible, to control your responses and actions to minimize the damage at the point of arrest, rather than trying to clean up the mess later.

Overview

   The founding fathers, when designing the constitution, and laying out the basis for the new nation made no mention of a police force, nor any mention of law enforcement at all, save the presidents power to prosecute treason and sedition. Although the legislature is charged with drafting laws and codes, you will find no bill or article establishing a working professional police force. The police are an executive creation, put into place by governors, mayors, or town councils,  by order and decree, not representative consent. I will get into the history and development of the police in a later chapter, but the short form is that the police are a relatively new phenomenon, developed in the mid 1800's, mostly as a method of controlling large scale urban and ethnic riots in New York, Boston and Philidelphia. With the spread of labor and union actions in the early 20th century, police forces, as well as their powers, were expanded, with few checks and balances (that didn't come until the 1960s). Since most of the early rioting involved immigrant minorities, or working class laborers, police were, (and remain), a mechanism for the preservation of the white, protestant (Irish Catholics were knee-deep among the rioters)  elite and business interests. Though the effect is more subtle today, and the monied classes have broadened somewhat ethnically, the basic mission has changed little: protect the interests of the haves against the aspirations of the have-nots. While police roles have expanded to include crime-fighting and code enforcement, their core function overall has remained the same.

   Rules and policies governing police procedures are not  developed by federal or state legislatures. They are only promulgated through the court system, through a series of test case rulings and constitutional challenges, and even then, until the advent of the Warren Court, the judiciary was reluctant to interfere with state police powers (with a few exceptions). And until the 60s,, the guarantees enshrined in the Constitution were not extended to state procedure. That's right, the bill of rights, adopted in 1797, didn't apply to what happened in the states for nearly 200 years. And since most crimes are prosecuted by the states, nearly all criminal procedure in the United States of America was determined by the dictates of the ruling class and it's representatives: big city bosses, governors, good-ol'-boy sheriffs, and local potentates.

   Before the mid 19th century, there were, in effect, no organized police. Communities depended on volunteer constables, town criers, and in a few places, a sheriff and a magistrate, serving part time. When becoming aware of a crime, volunteers were expected to raise a "hue and cry", to which citizens were expected to respond. If a criminal needed to be apprehended, a 'posse' was formed, and f a citizen wished to prosecute a person who had wronged him, he bore the responsibility of investigating and developing the case, as well as all expenses involved in  pressing his charge.

   This is not a history book, but it is impossible to understand the climate we live in today without a basic understanding of the evolution of rulings regarding police procedure. Until the Warren court, there were few attempts to rain in the abuses of police forces, which functioned like private armies, appointed by patronage and beholden to the big city bosses that formed them. The

Wickersham Committee, appointed by Herbert Hoover originally to gauge the success of prohibition, was so appalled by what it learned about police abuse that it expanded it's inquiry to include an examination of tactics and procedures, and and issued a scathing report on law enforcement excesses, describing them as "legitimized torture". The American Bar Association, conducting a concurrent investigation, reached the same conclusions. Such abuses, they said were not isolated incidents, but were systemic, encouraged and employed  ..."everywhere in the United States". Police Departments and their overlords across the country yawned.

   Then, on the heels of major civil rights decisions such as Brown v. Board of Education ( 1954) and Boynton v. Virginia (1960),  the Supreme Court, under the leadership of Chief Justice Earl Warren, had had enough. Warren, a republican former prosecutor and no stranger to police procedure, orchestrated a series of rulings that encoded standards for the protection of rights guarenteed in the constitution, clearly defined what does and does not constitute evidence, and more importantly, under the aegis of the 14th amendment, extended them to encompass the staes, eliminating their claimed immunity from federal constitutional scrutiny..

   By what method, Warren asked, is the public to be protected from the excesses and injustices resulting from police abuse. Warren and the court determined that the best way to reign in the police was to take from them the 'profit' gained from their actions, by 'excluding' in court any evidence, testimony, or conclusions obtained by unconstitutional methods, the "fruit of the poisoned tree". By referring to protections enshrined in the Bill of Rights, particularly the 4rth, 5th, 6th, and 14th amendments, the court issued a series of rulings that together established what came to be known as the "Exclusionary Rule", If police couldn't establish guilt by constitutional means and proper development of evidence, they would not be allowed to use the 'tainted' results during prosecution. The court did not invent exclusion. As early as 1914, in Weeks v. USA, the court struck down evidence produced by a US Marshalls search that turned up evidence that Weeks had participated in an illegal lottery.  But this was a federal case, and even then the court later ruled that states were free to ignore Weeks (Wolf v Colorado, 1949).  Other Court decisions hinted at exclusion, (Turning v. New Jersey, 1908, Powell v. Alabama, 1932), but it wasn't until 45 years later that the Court overcame it's reluctance to inject itself into stae business.

   Then the court set in to outline the details, broadening and expanding the scope of constitutional protections and extending such federal protections to the states. These rulings eventually evolved into the standards of police conduct that, theoretically, we are supposed to be operating under today. 

   Some key Warren Court decisions:

   Mapp v. Ohio (1961) 367 US 643 : In this seminal case, three Cleveland policemen burst into the home of Dolly Mapp and conducted a thorough but warrantless search that produced "obscene" materials. The Warren Court used this case to disallow evidence obtained without a proper search warrant, but more importantly, to establish that constitutional protections applied across the nation; that states could not over-ride protections guaranteed in the bill of rights, and that exclusion would be the price paid for violating citizens rights.

   Griffen v. California (1965) 380 US 609 : Griffen was charged with murder, and the strategic decision was made for him not to take the witness stand. The prosecutor and the judge used his reluctance to testify against himself to draw inferences of guilt for the jury. Although the 5th Amendment clearly states that a person is not required to testify against himself, several states had encoded into law that  such a refusal could be used as a presumption of guilt. In Griffen, the court banned the process nationwide.

   Miranda v. Arizona (1966) 384 US 436 : In possibly the most famous court decision of all time, Ernest Miranda was arrested and convicted of rape. Judges found that police used a battery of coercive techniques and tricks to extract a confession from him, all specifically prescribed in police manuals, which Warren liberally quoted from during the proceedings. The court had had enough, and determined that the only way that a suspect could be protected from such tactics was by having a lawyer in the room with him: "It is just as important for a person to receive legal counsel during pre-trial activity, as it is during the trial itself". This led to the ubiquitous Miranda rights that police are required to read to a suspect before he is interviewed and that everybody is so familiar with: "You have the right to remain silent, if you give up the right to remain silent, anything you say can and will be held against you in a court of law. You have the right to have an attorney present during questioning, if you cannot afford an attorney, one will be provided for you..." The passing of Miranda was met with howls of disapproval from police and law enforcement types, saying it would end confessions and police questioning entirely. Curiously, confession rates did not change markedly from before Miranda. Police (and later courts) have found numerous ways of getting around Miranda, as we shall see later on. In an ironic sidebar, Miranda was killed in 1974 in a bar fight. Police dutifully read the killer his Miranda rights as they were hauling him away.

   Gideon v. Wainwright (1963) 372 US 335 - another very famous and important case, the inspiring story is immortalized in the book and movie, "Gideon's Trumpet", by  Anthony Lewis. Gideon was an indigent pauper who was accused of breaking and entering a pool hall. When he asked for counsel, the State of Florida, citing it's statutes, told him he had no such right. Gideon, loudly proclaiming his innocence, was convicted, and filed his own appeal, hand written on  jailhouse stationary, utilizing the meager resources of the prison library. His rag-tag appeal eventually reached the Supreme  Court, where future justice Abe Fortas took up his case, and his conviction was overturned. More importantly, the Court overturned it's own precedent and ruled that "Lawyers are not luxuries, but necessities...that a fair trial cannot be realized if a poor man has to face his accusers without counsel to assist him". This ruling extended nationwide the right to counsel, and led to the establishment of  the office of the Public Defender to provide counsel to indigent defendants.

   Katz v. US, (1967) 389 US 347 -  Explaining that "the 4th Amendment protects people, not places", the Court ruled that law enforcement could not intrude where a person had "a reasonable expectation of privacy", and thus established limits to wiretapping and electronic eavesdropping. Police had placed a microphone in a public phone booth that Katz was using.

    Mallory v. United States (1957) The Court reaffirmed the earlier McNabb v. United States (1943) ruling that barred confessions obtained after lengthy interrogation sessions. In McNabb, several men had confessed to a klling after three days of questioning without food,:in Mallory, the same situation involved an eighteen hour detention. The court affirmed the right to a speedy arraignment and extended this requirement to the states.

   Massiah v. US (1964) 377 US 201 -  Massiah was convicted on evidence obtained by an undercover informant after he had engaged a lawyer. The Court ruled that this violated his right to counsel. Later cases affirmed the principle that the right to counsel applied even during questioning by an undercover agent, or hearsay from jailhouse snitches. Massiah was severely limited in 1990 (Illinois v. Perkins) when the Court ruled that such protections applied only after indictment.

   Malloy v. Hogan (1967) 378 US - Malloy, on probation after serving three months on a gamblin charge, was asked to testify at in inquiry into illegal gambling operations. He refused, saying that such testimony might incriminate him in other crimes. He was thrown back into prison, even though no new charge had been brought against him, or any violation of probation occurred. Judges reaffirmed his 5th amendment rights, but extended these protections to the states, under th 14th amendment.

   Aguilar v. Texas (1964), strengthened the probable cause doctrine. The Court ruled that a warrant could not be issued based on a tip from an unnamed source, and required police to provide specific information and independent verification of the information before a warrant could be issued. This was re-affirmed in Spinelli v. US (1969), but the standard was later struck down in Illinois v. Gates (1983) which allowed warrants to be issued on reasonable suspicion based on the polices' expertise and experience.
   Duncan v. Louisiana (1968), Until this decision, a trial by jury was not a guarenteed right in state criminal proceedings. As a matter of fact, the court had ruled, in Maxwell v. Dowd, (1900), that "Trial by jury has never been affirmed to be a necessary requisite of due process of law". Duncan was convicted of battery and sentenced to two years without a jury trial. The Warren Court, stating that a trial by jury was "fundamental to the American scheme of justice", overturned his conviction. The principle of trial by jury has been steadily whittled away in subsequent rulings, and by the process of plea bargaining (See "The Incredible Shrinking Jury).

   Unfortunately, court decisions have proven surprisingly ineffective in managing police behavior. Beginning with the presidency of Richard Nixon, who ran on a "law and order" campaign, and his Supreme Court appointments,and continuing through the Reagan and Bush I and II regimes, the Court has been steadily chipping away at the Warren reforms, devising exceptions and expanding police powers, as well as systematically protecting police behavior from penalty and scrutiny. In Arizona v. Fulmanante (1991), the court appeared to say that some coerced confessions can be admitted, and in Mack v. Burbine (1987)  the court allowed police to prevent the accused from having his lawyer present during questioning. In todays climate of manufactured fear, and the success of election tactics that call for "law and order, police are essentially free to  do what they please, confident in the protection of the courts, the support of the frightened public, and the manipulation of legalese developed to get around mandated protections. Court decisions and orders are, in the words of author David Swan "like a referee introducing a barroom brawl: the stern warnings about hitting above the waist and taking no cheap shots have nothing to do with the mayhem that follows."

   Though sometimes cases are dismissed because of tainted evidence, this only happens about .5% to 2% of the time. There are several inherent flaws with the idea that exclusion prevents police abuses. One is that most cases are settled by plea bargain, before a hearing on the evidence and how it was obtained even enters the picture. Another is that Judges, often elected on "tough on crime" credentials are extremely reluctant to exclude evidence and subvert police work, often finding technical work-arounds, based on exceptions outlined in post-Warren Court rulings. Excluding evidence doesn't really punish police, it punishes prosecutors, and police are also comfortable in knowing that in any litigation, their version of events is automatically given much more credence then the suspects by juries. Finally, exclusion does not occur until an arrest is actually made, and charges are filed- it does nothing to hinder procedures such as "stop - and - frisk", or tainted evidence included in warrant applications.

   There are other methods of controlling police misbehavior, but these have proved ineffective or impractical. Damage suits against police or prosecutors have little chance of success because jurors tend to favor law enforcement, and courts have repeatedly ruled in favor of immunity from prosecution for those involved in prosecuting crimes. This immunity has expanded over the years. (See the "Du Page Five" case, http://www.nytimes.com/1999/06/05/us/prosecutor-4-sheriff-s-deputies-are-acquitted-wrongfully-accusing-man-murder.html ). Police administrators, facing powerful unions, are unlikely to discipline individual officers, even in the most egregious cases. Grand Juries, a direct arm of the prosecutors office, will, in the venacular, "indict a ham sandwich", but not in cases involving law enforcement, where procedures are changed so drastically that an indictment is rarely obtained, as recent events in Ferguson, Miss, Cleveland, Ohio, and New York city attest. (See Chapter 4, Indictment and Prosecution.)

   Although we will likely never go back to the day when beatings and torture were a routine part of police procedure, it would be a mistake to conclude that they have disappeared altogether. The Area 2 precinct of Chicago  under Jon Burge, was shown to have engaged in systematic torture and abuse of arrestees over a period of twenty-some years, including the use of car batteries attached to genitals, the holding of body parts against a hot radiator, waterboarding, and beatings with, among other things, a typewriter and batons. Hundreds of suspects were unjustly locked up as a result, and Illinois is still paying reparations and releasing inmates, often after long periods of incarceration. And the accused often seem to suffer from extreme clumsiness while in custody: falling down stairs, banging into doors, and the like. Often, within a locked cell, or deep in the heart of a city or county lock-up, they "attempt to escape". At least that is invariably the explanation given for the bruises, lacerations, and broken bones visible on suspects persons.

   Investigation

  Police investigative procedures can be divided roughly into four areas, each with it's own methods and techniques, and each with it's own inherent problems and issues. Their use is carefully orchestrated according to procedures outlined in police manuals, so that exclusionary rules and official administrative policies can be circumvented.

   Search and Seizure: The Fourth Amendment specifically and unequivocally states that "...the right of the people to be secure in their homes, persons, papers and effects from unreasonable searches and seizures shall not be violated". Early Americans and the drafters of the constitution were particularly concerned with the practice of executing "general" warrants: unregulated searches and seizures performed under the license of government sovereignty . In the real world, only about 5% of searches and seizures are performed with the benefit of a "specific" warrant. We are drifting once again ever closer to the practice of the general warrant.

   The Warren Court encoded three requirements on the issuance of warrants: that it be issued by an impartial judge, that it be based on "probable cause", and that it be specific as to what is being searched for, and where the search may be conducted, the "particularity" requirement.  So many exceptions have been carved out of the law by the ensuing Berger and Rehnquist courts, and continuing into the Roberts era, that the constitutional wording has become almost meaningless. Requests for warrants are rarely denied, and even after their issuance, there are numerous exemptions to their required specificity. Evidence encountered outside the warrants guidelines can still be entered into evidence if the police say they were operating "in good faith" and that they "believed" their search was proper. (US v. Leon, 1984) . Needless to say, all officers believe that their searches are proper, or will at least say so in court. Police may enter a house if they reasonably believe that a crime is in the process of being committed, or if they believe that evidence is being destroyed, or that a person inside may be in danger. It doesn't matter afterwards that none of these things may have proven to be the case, it is determined by what the police believed at the time, a subjective and malleable proposition.

   Almost all searches of persons or property outside your home, your car (US v. Chadwick, 1977, California v. Avecedo, 1991, Whren v. US,1996), your luggage (Bostick v. Florida), 1991, your private papers and records (US v. Miller, 1976, Andresen v. Maryland, 1976,) your pockets and person (Terry v. Ohio, 1968, ), even the fluids inside your body (Schmerber v. California, 1966, Skinner v. RLEA,1989, and NTEU v. Von Raab, 1989), are acceptable without a warrant. New Yorks "stop-and-frisk" practice (authorized in Terry v. Ohio, (1968, et al) dispenses entirely with the idea of probable cause and replaces it with mere suspicion, a very open ended license, indeed. Terry, ironically decided by the Warren Court, says that "...where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot" he is entitled to conduct a "reasonable" search. This subjective language opens up wide areas of rationalization, and grants police virtual carte blanche. Police may stop and ask you to present your ID if you are a black man in a white neighborhood (or vice versa), if you are dressed oddly, or are unkempt, or don't appear to be engaged in a productive endeavor, or if you're Hispanic, and in a large group in one car. All these examples have been used and held up in court as legitimate reasons for detention. Since most people don't understand their right to refuse, or more likely, are frightened and intimidated by police authority, they usually comply easily. Technically, unless you are actually placed under arrest, you are free to leave, but few people are aware of this, and even fewer will walk away from an intimidating display from a uniformed police officer. Cops know to make this request in a "tone of command" and this is usually enough to ensure cooperation. This acquiescence encourages law enforcement to continue and even expand this behavior, and every time they do, it further erodes our right to be secure "in our person or effects". Refusal to consent, even a calm assertion of your rights will label you as a "wise guy" or an "asshole" in cop parlance. Police take this as a sign that you feel superior to them, and will single you out for "special" treatment": a more intrusive search, a detention, an arrest, handcuffing, your car towed, a trip to the station and lock-up for "investigation", or in extreme cases, even a beating. Although they will inevitably call it "resisting arrest", you have actually committed a "crime" against police culture: the questioning of authority, the most serious offense of all, and one that is guaranteed to lead to more trouble for you.

   A particularly egregious example: in Florida, armed police boarded a bus leaving the airport and walked up and down the aisles requesting IDs and travel information, as well as to search luggage. and belongings. Since supposedly people are still "free to leave", or free to decline the request,  the Supreme Court ruled that this action did not constitute an unreasonable search.  Few can deny that this is an unconstitutional action: it is a blanket search, executed without probable cause or even reasonable suspicion. Yet how many people would be willing to stand up to armed, intimidating, police officers and draw unwanted attention (and possible retaliation) to themselves  by asserting their constitutional rights in such a situation.

   Roadblocks, purportedly to screen for drunk drivers or drug traffic, do not even require suspicion: they are merely a blanket search of any individual who happens to wander into a designated area. The courts have allowed this (Michigan State Police v. Sitz,1990) and have expanded it in recent years as a method of keeping "undesireables" out of a neighborhood. In actuality, it is nothing more than a fishing expedition, and a method of keeping people aware of police authority: in other words, harassment.

   Since there are so many traffic laws, regulations, and vehicle codes, traffic stops can be effected for any reason whatsoever, (fitting a profile, driving while black, a beater car designating a poor person, or cops just establishing a "presence" in a neighborhood. A warrant less search can then be conducted under an ever-growing list of probable cause rationalizations..

   Wiretapping, and it's modern equivalent, electronic eavesdropping are certainly a form of search and seizure. Although there were many restrictions on the practice at one time (Katz v. US, Berger v. US, 1967), prosecutors merely rewrote the statutes to circumvent these prohibitions. And the anti-terrorism legislation passed in the wake of 9-11, the so called "Patriot Act" completely blew a hole in them. Since cell phones utilize the public airwaves, people can have "no real expectation of privacy" by using them. And the communications companies, beholden to the government for their licenses and permissions, have few qualms about collecting and storing your data on the off chance that you may be a future target of a criminal investigation. All the service providers store cell tower records, text message detail, text message content, IP session information, IP destination information and billing copies for varying lengths of tim. Although they are private companies, and your search and seizure protections don't apply to them, those protections are jeopardized when law enforcement demands access, and using Miller and Andresen as a basis, they are allowed to demand such access. More recent cases such asACLU v. NSA (2006), Clapper v. Amnesty (2013) have upheld, for various reasons, the constitutionality of the gathering and access to private personal communication without a warrant.  Although there has been some blowback from the public and civil rights organizations, the courts have been somewhat ambiguous so far as this area of law has evolved. In the breach, law enforcement is probing and testing to see what can be gotten away with.

   Your phone or laptop., of course, is a portable tracking and eavesdropping device, and it is monitoring you all the time, even if you shut it off. Only by removing the battery can you disable this "feature". And in many phones, the battery cannot be removed.  Edward Snowden exposed that under the NSA's "Boundless Information" program the US government had collected and stored the phone records of several billion United States citizens, with the full co-operation of Verizon. When a copy of the secret court order allowing such collection was exposed and published for all to see, any pretense of checks and balances, and proper procedure and over sight became ludicrous.  Snowden also revealed the existence of the PRISM program: the massive collection of user data through Apple, Google, Microsoft and others that have monitored private internet activity since 2007. "Private emails, cell phone calls, and Internet searches, as well as all types of personal data trails—parking receipts, travel itineraries, bookstore purchases, and other digital 'pocket litter' is stored on massive servers at the Utah Data Center, or as it is known in government speak, the "Intelilgence Community Comprehensive National Cybersecurity Initiative Data Center" at Camp Williems, near Bluffdale, Utah. In documents exposed by my son, Jeremy Hammond, working for the Antisec arm of the hacker group Anonymous, it was revealed that government contractors such as Strategic Forecasting engages in more targeted investigation of groups and individuals of interest to the government. In these cases, material is seized and stored on the chance that it may someday prove to be evidence. All without a warrant, probable cause, or even suspicion.

 Most of us have seen what Mapquest and Google Maps can do. Satellite imaging can look right in your bedroom window, and there is no court ruling as of yet that can prevent law enforcement from doing so. There is no real need for the police to physically walk down your street and peek in windows when it can be done digitally from outer space. Ariel surveillance, drones, can fly over property to gather evidence: the courts have specifically said that a homeowner can have no expectation of privacy beneath public airspace. (Florida v. Reilly, 1989).  And again, there has been some backlash since the Snowden/Hammond/Manning revelations, but the idea that these practices will stop just because there is a public outcry can only be embraced by someone who has no grasp of the history of governments.  If it can be done, they will do it, they just will be more circumspect in how it's done..

   In Maryland v. King (2013), the court ratified the practice of the collection of DNA and blood samples from those who have been merely arrested, as opposed to those who have been convicted. Most states now allow the practice, indeed, such testing is expanding further into workplace environments, schools, and hospitals, with the intent being to establish a national DNA data base. 

   Interrogation: Court rulings as early as 1884 ruled that confessions must be voluntary, and that requirement was extended to the states in 1936. But it wasn't until 1966 that Court tired of dealing with cases of coerced confession and decreed that a suspect had the right to have an attorney present to protect suspects from abuse, and to ensure that proper interrogation practices are followed. The fabled Miranda decision (Miranda v. Arizona, 1966) as well as other decisions (Malloy v. Hogan, Escobedo v. Illinois, and Massiah v. US, all in 1964) spawned dire predictions about end of police interrogation entirely, but in reality, it has merely made police refine their psychological interrogative techniques, and create carefully framed methods that would be acceptable to the increasingly friendly courts. These rulings have actually done little to curtail abusive, coercive, and deceptive methods of questioning. Many of the methods specifically criticized in Miranda still appear in police training manuals today: exaggeration and falsification of evidence, fabricating witness testimony, long periods of detention, tag -team interviews, (where defendants face a rotating series of interviewers of a period of hours), withholding of food, water and bathroom breaks, confinement in extremely cold, or extremely hot rooms, in short, psychological abuse and trickery has replaced physical abuse (During the Miranda proceedings, Warren took the unusual step of actually reading excerpts from police manuals and textbooks into the record). In a previous post, I described the well-known case of Henry Lee Lucas, arguably Americas most famous "serial killer". Through a combination of psychological pressure, suggestion, and enticements, police soon had Lucas confessing to anything that put in front of him. He eventually confessed to over 3,000 killings, even though it was physically impossible for him to have committed the crimes. By all appearances, Lucas likely didn't kill anybody. But Texas police were able to (temporarily) clear their books of hundreds of cases. This shows where priorities lie: in numbers, conviction rates, and body counts, not in justice or public safety. A coerced confession deals society a double blow: not only is an innocent person put in jail, a guilty, and possibly dangerous person remains free. And if police are to fabricate evidence and testimony to secure confessions, what is to prevent that evidence from being inserted into the official record, (accidentally or intentionally), or to prevent police from falsifying evidence in a trial. If anything is allowed in the name putting bad guys away during pre-trial procedure, why should the same rationale not apply during court proceedings?

  The use of a polygraph machine is so unreliable that it's results can't even be allowed in court. Curiously, it's use was banned because the government didn't want a defendants exculpatory test to be admitted.  (US v. Scheffer,1998). Yet that does not seem to prevent it's extensive use as a device to trick a suspect into a false confession during the investigativephase by misrepresenting results to the suspect.

   Identification: Like polygraph tests, eyewitness testimony likewise has been repeatedly shown to be unreliable, yet because an eyewitness identification in a trial has such a persuasive effect on jurors,( often outweighing overwhelming evidence of innocence presented by the defense) police will go to extraordinary lengths to obtain corroboration from a person who may have been at the scene of the crime. Memories are notoriously corruptible by data absorbed between the witnessing of an event, and the describing of it, especially if the original experience was during a time of stress. This is well documented. Hundreds of studies have been done using simple tests that document this fact (Bekerian, D.A.. and Bowers, J.M., Journal of Experimental Psychology, Jan. 1983, Wells, G.L., and Olsen, E.A., Annual Review of Psychology, 2003, to name just two) Facial recognition begins to deteriorate at as little as 10 feet. (Loftus,Psychonomic Bulleten and Review, Vol. 12, #1). Length of time between incident and identification can blur memories, and ethnic and cultural differences often play a role in identifying  differences in individuals: people have trouble identifying individual characteristics in members of a different race. In the very first 130 cases where DNA evidence exonerated wrongfully convicted suspects, 78 were originally convicted by erroneous eyewitness testimony. (NY Innocence Project). 

   If a witnesses identification of a suspect in a line up can be shown to have been "suggested" by police (for example, by ensuring that the suspect stands out like a "sore thumb" from the other participants, hinting or directing attention to the suspect, or utilizing a "show-up"- a one man line-up) than the court may apply the exclusionary rule and disallow the witness' appearance in court. (Neal v. Biggers, 1972). But if an eyewitness can get past this barrier and directly point out a suspect, often that's all a prosecutor needs.

   Although the Warren Court ruled in Wade v. US (1967) that a suspect had the right to have an attorney present during identification procedures, to insure this type of suggestion doesn't occur, this right was substantially scaled back five years later in Kirby v. Illinois (1972). Now an attorney may only be present after charges are formally entered. Witness IDs rarely occur except during the investigative phase.

   DNA evidence, or any other forensic identification procedures using bodily fluids, markers are sometimes tainted by chain of custody and expert interpretation issues. While inherently more reliable than eyewitness testimony, they run into constitutional search and seizure, as well as privacy, concerns, though none of these arguments have proven very successful in court. DNA evidence is extremely problematic for law enforcement, as it highlights the unreliability of other forms of identification, as the Supreme Court has noted in Daubert v. Merrel Dow Pharmaceuticals (1993), so body tissue collection can be a two-edged sword. They'd like to have it because it's pretty conclusive, but if they don't have it, their other evidence is suspect.

   Undercover Operations: Unlike search and seizure, interrogation, and identification procedures, there are little to no restrictions on evidence obtained via clandestine or undercover operations. The courts have said that citizens assume the risk that their activities may be reported by their fellow citizens. This includes the use of informants or prison snitches, a process that is rife with possibilities for corruption and perjured testimony. Often the person who is offering information to the police is accepting something in trade for his testimony: favorable treatment, a lessening of charges he may be facing, even straight cash. Because such informants are confidential, judges have a hard time determining if they are reliable, or even if they exist at all: police will sometimes manufacture such a person, especially during the investigative stage,or during interrogation proceedings, where they will tell a suspect that they have a witness who will testify against them, so they may as well come clean. It is difficult for the courts to make an exclusionary decision in these cases, and so they will usually err on the side of the police.

   Efforts to claim that admissions of guilt obtained by police disguised as civilians are violations of 5th amendment rights against self-incrimination, or 6th amendment rights prescribing the presence of counsel during questioning, or a violation of the Miranda requirements, get hung up on the stricter interpretation of the Massiah ruling that such questioning is only proscribed after charges have been filed, (Illinois v. Perkins, 1990) and have gone nowhere in recent court challenges.

   Claims that undercover police enticed a suspect into committing a crime that he was not pre-disposed to commit, or "entrapment" , while technically not admissible under Sherman v. US, (1958), often fail on the evidence of a previous criminal record, or an association with others involved in similar criminal activities, circumstances that show pre-disposition. In one case, agents set up an entire meth lab, furnished the equipment, provided the materials, and instructed the suspect in every aspect of manufacturing and distributing the drug, and his conviction was still upheld. In another, an agent offered sex in order to persuade a suspect to obtain drugs for her, in still another, a suspect was asked to make purchases with stolen credit cards, instructed in the use of the cards, provided with the cards, and arrested when he used the cards. Upheld every one.

   Other, newer approaches to crime prevention each have their own issues. Community policing, that is, engaging the citizenry in co-operation with police operations, encourages the settling of personal vendettas by utilizing anonymous and unverifiable reports, as well as circumventing the right of facing your accuser. An anonymous phone call is enough to clear the benchmark of suspicion, and trigger investigations, searches, and even detention. New, carefully crafted loitering laws make it a violation to be just hanging out - as if one must always be engaged in productive activity just to be outside, or in a neighborhood. These and all the myriad of laws, statutes and regulations that clutter the criminal codes give police a predicate to detain or arrest someone if they choose, and to establish the legal backing and protection that enables their actions. 

    While the police are going through all their machinations to get you put away, their good friends at the States Attorneys office are working in harmony with them to figure out the most effective way to ensure that you become another notch in their gun. In the next chapter, I will describe the process and problems of bringing an indictment.

   Next: Process: Indictment and Prosecution

Gender Politics and the Law: Domestic Violence

 One of the biggest changes in the legal infrastructure over the last fifty years has been the increased empowerment of women in the legislative, and more importantly, the judicial and prosecutorial systems. Along with this has come an increased focus on women's issues, as well as a growing influence of organizations dedicated to turning the legal spotlight on crimes against women. This is mostly to the good. As women have begun to attain their proper and equal place in the discussion and implementation of policy, significant gains have been made. A woman's sexual history can no longer be used in court in rape cases, and it is understood that "no means no", no matter her sexual past. It is no longer acceptable to beat a woman because she was a "nag, or common scold", a legitimate mitigating factor as recently as 1950. It is now legitimate to claim self-defense in the killing of an abusive or battering husband, even if the woman's life was not in "immediate or proximate" jeopardy, indeed the stigma of assaulting a woman has evolved into that of a cowardly weak man: such a man is looked upon with justifiable derision, whereas in the past, it was considered a mans prerogative. And police are no longer inclined to respond with a nod and a wink to domestic violence calls, or to simply "mediate" between the parties, which often condemns the woman to future battering.

   However, an undesirable side-effect has appeared along with these gains.. Strident activist groups, with the co-operation of women in positions of power and politicians catering to the women's vote have advanced an agenda that, beyond correcting historical and patriarchal injustices, have distorted the true picture of gender relationships when it comes to legal advocacy and prosecution. The goal seems to have evolved into tactical victory in the name of a perceived gender war, rather than a fair and equitable evaluation during the development of criminal policy. This has had the consequence of demonizing men, unnecessarily increasing the male prison population (and it's attendant breakdown of families), and the portrayal of women as perpetual victims, certainly antithetical to the stated goal of empowerment and equality.

   Of course, victimhood is one of the most powerful tools in the political arsenal whenever a group wishes to advance it's agenda, one that will not be ceded easily, because to do so dilutes the power and momentum that has been achieved. As in all warfare, reasonableness is a weakness. In reality, gender warfare is a manufactured conflict. We all have an interest in combating domestic, as well as general violence. It is disingenuous and counter- productive to inflict damage inaccurately and unnecessarily on those who should be our partners and allies. At the very least, policy should be based on an accurate reporting of facts, and a clear picture of the true state of domestic violence situations. With the  heated rhetoric of domestic violence, this is demonstrably not the case.

   Men are incarcerated at a rate of 20:1 for domestic violence compared to women. Yet study after study show that women are equally, if not more guilty of violent assaults on their partners. What studies? Here are just a few. Morse, BJ, -"Beyond the Conflict Tactics Scale: Assessing Gender Diferences in Partner Violence". Edalati, Ali and Redzuan, Ma'rof,  "Female Physical Aggression ( A Review of the Data)",

Arias, I., Seimos, M, and O'Leary, KD, "Prevalence and Correlates of Physical Aggression During Courtship"-Journal of Interpersonal Violence, Hamel, 2005, Brown,. 2004, George, 2003, Cercone, Beach and Arias, 2005, Katz, Kuffel and Coblentz, 2002,...the list is endless. (I have included more studies at the end of this paper.). Not enough? In a roundup of seventy empirical studies, fifteen scholarly reviews and eighty-five carefully controlled investigations by Martin Friebert, Ph D., of the University of California, Long Beach, the cumulative consensus is that men are morelikely to be assaulted by their spouse than woman, (though the difference is statistically insignificant). And finally there is the gold standard: Murray Strauss' seminal series of reports, surveys, and studies over a period of thirty-five years, the best researched, most carefully controlled work on the subject, corrected and reevaluated over time, and the work referred to in every discussion of the subject, as well as the one under the most virulent attack. I will refer to his findings more later on.

   Of course, the devil is in the detail: surveys are conducted in different ways. For example, it is presumed that men will under-report their own assaults. To correct for this, the National Family Violence Survey questioned 2,994 women. The result? According to women themselves, there were 124 assaults per 1000 couples instigated by women, and 122 per 1000 instigated by men. Separate results were obtained for severe assaults, as opposed to minor assaults. Woman committed 50 severe assaults per 1000, compared to men committing 46. I will stress once again: this is according to women.

   We of course cannot leave the abuse of children out of the equation, though I plan to deal with that as a separate issue in a later chapter. In general, studies and statistic show that women are the most prevalent abusers of their children, and not by a small margin. Of every 100 children victimized by violence, 62 are victimized by their mothers. (Steinmetz, 1980, and Texas Dept. Of Human Services)

   Many of the misleading figures quoted by advocacy groups result from surveys conducted at shelters for battered women. Results here are predictable. Many others come from arrest and crime statistics. These are skewed against men for the same reasons that domestic violence incarceration rates are skewed against men, reasons which we will examine as we go. Results are further distorted by the phrasing of the questions. For example, in one survey, a question seeking "factors responsible for the battering" do not include as an option an initial attack by the woman.

   During the buildup to the 1994 passage of the Violence Against Women Act, it was common for advocates to claim that a "woman is assaulted by a domestic partner every eighteen seconds", or that 20-30% of injuries that send a woman to the emergency room stem from abuse by their partners. These figures, quoted by President Clinton, the ABA, and the AMA, come from a single source: research duo Evan Stark and Anne Flitcraft. Yet thevery same study shows that a man was assaulted by his partner everyfifteen seconds. And the ER stats classified any injury whatsoever caused by another person against a woman as domestic violence , including muggings, and car accidents. Stark himself retracted most of his claim. The act eventually allotted five billion dollars to fight violence against women (none for men!) and increased criminal penalties for domestic violence, as well as adding over 700 new crimes, thresholds, and mandates, including the near universal legislation that requires police to make an arrest on every domestic violence call. This automatically translated into increased incarceration rates for men, and all that entails: family breakdown, increased impoverishment and unemployability, single parenthood and overcrowded prisons.

   There are several dissonances at work here. It is, correctly, perceived that of course a man is inherently capable of inflicting much more damage than a woman. Yet beyond that truth is the fact that a woman is statistically more likely to use a dangerous weapon, by a three to one margin. When serious injuries are tallied, woman far outpace men. An analysis of 6,200 police reports and hospital records show that 74% of men experienced serious injury while women averaged 51%. When a weapon was used, 63% of men were injured and only 15% of women. Studies show that while men were more likely to strangle,, choke or beat up their partners, women were more likely to slap, kick, bite, punch or hit with an object. (Archer, 2002). Apologists claim that these are natural responses: women are reacting in self-defense against a more powerful foe. This is belied both by statistics that show women equally initiate aggressive behavior, and the common sense correlate that by initiating physical aggression, a woman is inviting retaliation, which often can lead to an increase in the severity of the injuries.

   This response carries the implication that when a man is attacked, hedeserved it. Polls suggest that society supports this contention. It is considered acceptable for a woman to slap a man who has been "fresh".  A woman assaulting a cheating husband is acceptable, but when the woman is the cheater, the attack becomes an incarceratable offense. Both society and the legal system operates on the presumption that a man should just take it, so many men are reluctant to report incidences of violence perpetrated by their female partners.

   Because of the heightened awareness of the problem, politicians, the law, and the courts , as always, rush to overcompensate. The result is that the threshold of what constitutes domestic violence has been lowered. Any laying on of hands- grabbing, holding is now considered an assault. In one definition, for the purpose of reporting assault figures (and increasing budgets), assault was described as "insulting, swearing at, sulking (sulking!), refusing to talk, stomping out of a room, saying things out of spite(!) As we've noted previously, most states require an arrest on a domestic violence call, so police need to scramble to find a way to turn a minor disagreement into a prosecutable crime. The go-to position, the one that will be most believable in court, and cause the least grief from advocacy groups in the current social climate is to charge the man.Research shows that 15% of all couples experience at least one incident that could be considered domestic violence a year. The incidence of actual serious battering is more in the line of 1%. This does not minimize the enormous cost and damage experienced by the victims of that 1%. It just says that arresting and incarcerating the rest has a cost too.

   What also has a cost, apparently, is daring to speak out against the direction we are headed in. As stated before, victimization is a powerful weapon and the demagogues that benefit from it's use will not give up the moral high ground they are holding easily. Researchers who have pointed out the problems, inconsistencies, and factual errors that have been taken as gospel have come under fierce attack by advocacy groups, including violence and harrassment. Even the "founder" of the domestic violence movement has been vilified for speaking the truth. Erin Pizzi, author of "Scream Quietly or the Neighbors Will Hear" and the founder of the first  shelters and crises lines for battered women: "There is now an established domestic violence industry which fears any acknowledgment of the well established scientific fact that women can be as violent as men with their intimate partners, and are not always victims reacting only in self-defense." The truth is that domestic violence is a human problem, not a gender problem.

   Okay, let's take a breath here. None of this is meant to encourage the increased incarceration of female domestic offenders. (We are after all, trying to reduce the prison population!) Nor is it a call to turn back the gains that women have earned in the workplace and society in general. It is a call to turn down the heated rhetoric that results in a frenzy of laws and prosecutions based on faulty data that results in damage to thousands of men and their families, and the significant societal damage that results. The true fight against violence (of any kind) is being sacrificed to a overarching political agenda. The loss of a father or spouse damages women too: single parent homes, kids raised without a father figure, loss of income and impoverishment, as well as increased societal dependence.

   Why does domestic violence occur? The overwhelming consensus is that it is learned behavior. If a child is raised in a home where violence is the norm, he will develop into an adult that believes the same thing. It becomes self perpetuating and normalized. That is why it is so important to focus on eradicating home violence in all it's forms, regardless of gender. To hear the slogan "My parents beat me, and I turned out all right", is bad enough in the world, but to hear it uttered in prison defies credulity.

   Theories as to the roots of violent behavior generally fall into three categories. The instinct perspective, advanced by Freud and Lorenz, postulates that aggression stems from thanatos, the death wish, initially aimed at self-destruction but eventually externalized, or from an inherited fighting instinct that is common to all species.

   Drive Theory suggests that frustration, disappointment and interference with goal oriented behavior can cause an individual to lash out at those who are seen as standing in the way of those goals, or at least those who he/she has transferred the blame for frustration to.

   The General Affective Aggression Model poses a list of input variables such as exposure to people behaving aggressively, exposure to cues related to aggression, such as guns or other weapons, values about aggression such as that it is acceptable, or even desirable and expected,having prejudices about the character of specific groups, or having specific skills such as knowing how to fight or use weapons. These input lead through a progression: first, a physiological arousal or exitement, then to hostile feelings, which then encourage hostile cognitions. Individual appraisal then determines whether aggressive action can be effected without penalty. Anyone reading through the above list will no doubt come to the conclusion that the answer is "all or most of the above". Most individuals rarely get to the stage where risk analysis affects the decision making.

   These are the factors that must be addressed, the grounds on which the battle against violence must be fought. It does no good to single out half the human population as at fault for having an alleged "inherent characteristic" as a cause when those characteristics are endemic to all humans. The solutions lie in education, counseling, the proper training of health care providers, law enforcement and legal proffesionals that teaches, to both sexes that the tolerance of violence is passed down from generation to generation, and with time it can be eliminated. 

   As those who hold onto patriarchal, misogynistic, and retrograde attitudes die out and are replaced by those to whom normalized violence is considered unacceptable, we will see a continued dramatic drop in the incidence of domestic violence. (Male battering of women has already undergone a significant drop as societal awareness is raised. Female rates, curiously, have risen slightly.) In the meantime, we need to stop throwing stones, concentrate on ending the generational cycle, stop the gender politics and work together at eradicating this serious problem by addressing the issues at their very human core.

   Next: Gender Politics and The Law: Sex Crimes.

The Celebrity Marketing of Henry Lee Lucas

 Henry Lee Lucas is arguably Americas most famous serial killer. As a matter of fact, the term "serial killer" was coined by FBI agent Robert Ressler specifically to describe Lucas. There are over forty books (and counting) that have been published, as well as mention in most of the true crime anthologies, as well as several films including the well known "Henry: Portrait of a Serial Killer" and "Drifter: Henry Lee Lucas". How many people did Lucas kill? The best evidence says that the answer is none.

  The best case for a murder committed by Lucas was for the Michigan murder of his mother, Viola Lucas, a prostitute who had forced him to dress up like a girl to go to school, and watch as she serviced her customers, as well as repeated beatings and other abuse. They argued frequently, especially over Lucas' proposed marraige to a woman Viola did not approve of. According to documents, during one of these arguments, he struck her on the neck and she fell, unconscious, but was not, in fact dead when discovered later by Lucas's sister Opal. Official police reports state that the cause of death was a heart attack precipitated by the assault. Lucas was repeatedly raped and brutalized in prison, and after serving 10 years, he was released. This is the only case where there is reasonable proof of Lucas' involvement in a murder.

    Lucas was next arrested in 1983 for the alledged murder of 83 year old Kate Rich, and his traveling companion Frieda Powell, and detained by Texas authorities in a freezing cell without clothes, bedding, little food, no access to a lawyer or any communication with the outside world. There was little or no evidence that he had anything to do with the crimes, but he was told that if he confessed, they would get him a lawyer. After two weeks of this treatment, Lucas confessed, though he had no information as to details of the crimes. Texas authorities fed him certain specifics, and Lucas parroted them back to them. Lucas did learn, however, that the more he co-operated with officials, the better his treatment became. Soon he was confessing to any crime Texas law enforcement put in front of him. Officials from across the state, and eventually from across the country came to Texas to clear their books of unsolved murders, and he was given access to records and reports from crime scenes so that he could provide details while under questioning. As details of the alleged hundreds of murders became public, the book deals and the newspaper stories started streaming in, and his captors began jockeying for publicity, receiving numerous awards and citations as the men who brought this "monster" to justice. The more his fame grew, the more cases Texas officials were able to pin on him, the better treatment he received. He was given the finest food, the security access codes to the jail, and freedom to come and go as he pleased,privileges that no Texas inmate would get. He was indulged in the extreme- videos show him palling around with his captors, unshackled, in fancy resteraunts, and public events, and he was once left at an airport and told to just wait here, while law enforcement would be along to pick him up. When asked by reporters why he didn't just run he answered "Where am I gonna go? They're treating me great." He eventually developed into somewhat of a diva- demanding certain favorite foods, and having parties thrown for him at the local Holiday Inn by Texas rangers featuring booze and hookers.He was the center of attention for the first time in his life and a national celebrity, and as long as he kept confessing, the royal treatment would continue. Texas was clearing their murder cases at a record pace. The common toll is that he killed over 350 people. Actually, he confessed to over 3,000 murders.

   Meanwhile, actual evidence of Lucas' involvement in these killings was scant to non-existent. He was fed crime reports and simply fed officials the details they wanted to hear. When a sober investigation was finally conducted into the veracity of Lucas' claims, the truth appeared to be that none of them could be confirmed. There is nothing that verifys his confessions, and plenty of evidence against them. Texas Attorney General Jim Maddox: "Of all the people he theoretically killed, he never once led police to a body or a crime scene that had not been previously found, they never tied him to a single gun, they never found a footprint or fingerprint...there was nothing that ever caused me to believe that he was the guy that committed any of these crimes.

   Many of the murders would have been physically impossible for Lucas to have perpetrated. Record show him in other states, in a hospital, being married and even incarcerated when the crimes were committed. In an investigative report by Texas Daily Herald reporter Hugh Aynesworth, it was calculated that Lucas woul have had to travel 11,000 miles in one month in his 13-year old Ford  to commit several of the crimes he confessed to.Lucas claimed to have killed Jimmy Hoffa, provided the poison to Jim Jones, and stalked Jimmy Carter. He also confessed to hundreds of rapes, even though a stabbing in prison had left him "functionally impotent"

   After spending some time on death row, and as his execution date approached, Lucas finally recanted his confessions. "I never killed nobody", he said. The press eventually began treating the whole thing as a joke, lampooning Texas authorities.

   A special commission was eventually formed to look into how Texas had miraculously cleared it's murder caseload by putting all on one guy. After numerous investigations, studies and hearings, the Texas (Texas!) Board of Pardons and Paroles voted to commute his death sentence, and three days later, Governor George W. Bush granted him clemency. Judge Moore: "As you look at all the evidence in each case that comes up, you begin to see a state agency making a serial killer out of a person that may not have killed anybody."

   Why is this important? First off, those thousands of murders were committed by somebody, somebody who has gone free. None of the cases Lucas confessed to were reopened and remained unsolved, leaving frustrated victims families, and an unsatisfied public. Secondly, it illustrates that what matters to law enforcement is the all-important conviction rate, and the promoting of the image of law enforcement protecting us all from the "monsters among us." Texas police had a good thing going with Henry Lee, and he played it for all it was worth. But similar tactics, fabricating evidence, coorceing confessions, brutal interrogation techniques and enticements, are used every day on a smaller scale to get the desired results.

   A main source for this post was "Henry: Fabrication of a Serial Killer" by Brad Shellady, who had unparallelled access to thousands of primary documents and most of the principals of the case. Other sources include "Bloodletters and Badmen", by James Nash, Wikipedia, and "The Illustrated Encyclopedia of True Crime".

Life Inside

   The following is based on my experiences at Dixon and Big Muddy River Correctional Centers. Though prisons are generally the same, others may have had different experiences. It is not meant as a woe-is-me diatribe against prison conditions, but as an accurate description of prison life to counter the general image portrayed in the media.   
   Your day starts at 5:00 A.M. with a wake up call from the bubble officer to "wake up for chow". The bubble officer doesn't care whether you eat or not, so often he will just whisper the announcement one time. The PA system doesn't work very well, so if you are not already up and listening closely, you will miss it and not eat. Sometimes, the CO will mumble to try to get inmates to misunderstand and leave their cells early, and so earn a ticket for "unauthorized movement". When your wing or deck is called, you trudge outside under the watchful eye of two COs. What are they watching for? The slightest violation of any rule or policy, such as putting your hat on before you are actually outside, a shirt not properly tucked in, and ID improperly displayed, or any talking in line. Or if he just doesn't like you or his job that day. (The early shift is usually staffed by COs who have had problems- it is used as a disciplinary measure by the administration). If they spot such an infraction, they will turn you around and send you back to your cell without waiting. They are not supposed to do this- if you break a rule they are supposed to write a disciplinary report, a "ticket", but this is a hassle for them, so they do it anyway. You have little recourse but to make an issue of it by filing a "grievance", but this is an exercise in futility, and can cause you additional problems down the road, as we shall see later on.

   Once you do make it to chow hall, you will pick up your tray and have about five minutes to eat before you are told to get out, finished or not. Breakfast is usually a hot gruel like grits, farina or oatmeal accompanied by two slices of stale bread and jelly. (It's not really stale, it's just made without yeast, so that inmates can't make "hooch" out of it. Tastes stale though.) Once a week, you may get scrambled eggs or a soy patty, and due to a lawsuit a few years back, you get 16 oz.s of milk. You are not allowed to trade or give away food you don't want, but this policy is generally overlooked, unless a CO is in a mood or a particular jerk, so the air is filled with calls for deals - "got milk for juice", "got a pancake for hot cereal". Cos are barking commands and orders for no purpose other than to feel like they're in control. For example, if a line is packed full, "nuts to butts", because of a hold up at the distribution window, it is impossible to move any faster, right?, but they'll still yell at you to get moving anyway. After a while, you learn to just ignore them.

   After you return to your cell, you climb up on your bunk and try to get back to sleep for a couple of hours. At 7:00, the count light goes on, and the 7-3 shift will go door to door to make sure no one has escaped overnight (impossible). Some COs will bang on the doors, or yell into the room to wake you and see that you aren't dead. The real reason for this is to deprive you of sleep, another method used to keep you miserable and not at your best. Also at 7:00, all cells are supposed to be "in compliance". This means that all your stuff except for items on a list is stowed in your "box", a footlocker kept under your bed. Almost everything is prohibited from being out. Occasionally, they may do a "compliance check"- gangs of COs will descend like locusts, going cell to cell, slamming doors, and ripping into any stuff that isn't on the list, throwing it into hallways, tossing your bedding and generally trashing your cell. They seem to really enjoy doing this. Here again, they may write you a ticket, but it's easier for them to just take your stuff, sometimes for themselves. Items such as electric razors and magazines are popular with COs.

   At 8:00, the regular day begins. If you have classes, this is when they start, and you will be marched to the school building following various protocols, depending on the CO walking you. A word about "movement". Anytime a group of inmates is being taken somewhere, they must walk in a double line, "paired up", with your opposite number as you walk, and no more or less than two arms lenght from the guy in front of you and the guy in back. If you aren't, it gives the CO an excuse to send you back to your cell- no school for you. COs don't approve of education programs for inmates, and will use any excuse to throw a monkey wrench in the works. Or, again they may take your ID. This is a very big deal, because without it you can't go to gym, yard, school, or even chow. This again is something they are not supposed to do- they are supposed to issue tickets for infractions, and then there is a hearing in front of the "adjustment committee, which will determine your guilt or innocence and administer punishment. That's too much paperwork, plus the administration may see what petty bullshit is being called out, so by taking your ID they are bypassing all this, and incidentally keeping the ticket count down so the official record shows that the institution is well run and has few disciplinary problems. Like in the world, your guilt or innocence is determined by the arresting officer.

   If you don't have classes, you may have day room time. This varies by institution- at Dixon, and most minimum-medium joints, you can be out most of the day. You just have to return to your cell for count, before meals and at night. In some minimums, you can even sign out of your house and go where you choose-gym, yard, the library (if the facility has one). At most you have to stay in your building in a designated area where you can play cards, watch TV, or bullshit with your friends. At Big Muddy there is a 21 hour lockdown policy, so you stay in your cell until your assigned dayroom time comes up. On odd number days you can come out from 8:00 to 9:15 in the morning and 6:15 to 7:30 at night, and on even days from 12:00 to 2:15 and 7:45 to 9:15. Your scheduled gyms or yards times are worked into this time frame. At Dixon, you got one hour gym and one hour yard every day, at Big Muddy you got about two forty-five minute gyms and one forty-five minute yard a week- if you're lucky. They are required by statute to provide at least three hours outdoor time per week, and in their report to the John Howard Association BM claimed that inmates got six yards or gym per week. This is a bold faced lie. Yards, especially are cancelled all the time because COs don't feel doing it, or there are "staffing" issues. COs get fifteen paid snow days and fifteen paid sick days a year (!) and will take them for any reason or no reason. Again, many COs feel that inmates should get no  gym or yard and should be in their cells all day (it reduces their workload) so they take any opportunity to cancel these activities. Items are often in poor repair and so removed from use all the time and not replaced. (This is happening with school, too...more later.)

   At about 9:30 or so,  the lunch lines start walking. Same as breakfast, you'll have five minutes to eat before being herded out of there. Lunch is usually a soy patty (Illinois is a soy producing state-everything is soy!), or a lunch meat slice processed at Vandalia prison. Sometimes you get beaks or claws in the meat- the carton the meat comes in actually says "not fit for human consumption" right on it! At Dixon we often got fruit, hardly ever at Big Muddy, and only highly processed canned vegetables. LOTS of starch and carbs- spaghetti, mashed potatoes, rice, more stale bread- it's no wonder why most inmates get fat, sick,  and out of shape. Beverage is water. Desert, however is usually pretty good- brownies, cakes...it's almost like they're trying to make us sick.

   Popular pastimes are gambling and "trafficking and trading" (a ticket, if caught) and currency is food purchased at commissary- Ramen noodles are worth about a quarter, and "write-outs" (stamped envelopes) about fifty cents.

   You can only make calls (collect) from a pre-approved phone list, and then only after money is deposited in an account by the person you want to talk to. Rates used to be ridiculously high, until a lawsuit brought them down to a reasonable level- the phone company was found to be making kickbacks to prison administrators to ensure that they would get the lucrative phone account- now it costs about $3.65 for a half hour. Calls are recorded and sometimes monitored. This is usually done if you are on a list, say for suspected outside activity, or domestic issues, or sometimes they will dig up your recording if they need it as evidence. There are only four phones for each 120 inmates (three are usually working) so there are huge lines to make calls, and little day room time to make it in. Sometimes guys will charge to hold a phone or hold it for friends. A guy told me first day, "If you get in a fight while you're here, it will be over the phone".

   Inmates must also shower during the limited dayroom time. At Dixon, there were individual stalls, and lots of time to use them, but at Big Muddy there are two two-man showers. Most of the time people will wait and let others shower alone. After gym, though, with only a few minutes left till lockdown, 8-10 guys will cram in there at once, rotating under the shower heads. Needless to say, I avoided this sausage-fest, and waited till the next dayroom period. Some prisons have community shower. Prison showering is not like it's portrayed on TV, though. I have never heard of an incident of assault or rape, and nearly all inmates are considerate and respectful.

   Sexual activity does occur, but only on a consensual basis. Just like in the world, there are gay men in here, and if they can, they will sometimes hook up. Likewise, some are not gay, but if in prison for a long time with no hope of seeing a woman anytime soon. This is called "bidding"- having sex with a man because nothing else is available. The opprobrium against homosexual activity can be strong and pervasive, though, so these will generally keep their activities to themselves. Penalties for sexual misconduct are severe, too, and one can be shipped to a tougher prison if found out- even telling a female CO she looks nice today can get you shipped post haste..

   There are also a population of transgender individuals- "geechees" who were in the process of undergoing the change when they were arrested, starting the hormone treatments, etc. Though most avoid them, they are not picked on or attacked, and are often very assertive and flamboyant. Usually an inmate who is constantly and virulently anti-gay is suspect himself. One time a geeche got pissed off and "outed" everyone she had been with, and of course it was the most prominent gay-bashers on the block.. There is a strict prison policy and program in place to protect and treat those who may have been subject to an assault, including a hot line number and special counselors. I am aware of only one violent sexual attack, and even this was at first consensual,and after the first time forced attacks ensued.

   You may receive visitors from an approved guest list. These are eagerly looked forward to, as there are vending machines in the visitors room that have comparably good food which you can pig out on. Visitors can purchase cards which are renewable and can "dine" with you, and usually stay most of the day, unless visitor traffic is high. You are allowed a quick hug at the beginning and end of the visit, otherwise no touching. There is a separate area stocked with toys and decorated in bright colors for your kids to play in. This is an incongruous and depressing sight. You are thoroughly searched before and after your visit, and any contraband found will mean no mere visits for you. Amazingly, LOTS of things are smuggled in through the visitors room (though most contraband is smuggled in by guards). Although visits are usually positive and good for you, be prepared for a big letdown once it's over and you return to your cell. Visits often serve to remind you of the life you had, particularly seeing your kids and loved ones, and it can be a very depressing experience. I sometimes didn't recover for days after a visit.

   If you don't have a class and have early dayroom, you have a very long afternoon to kill in your cell. Activities include watching TV (if you have one), reading, sleeping (most inmates sleep 12 hours a day) eating, going to the bathroom or talking to your celly (This gets old really quick. Most cellys don't talk to each other after the first introductory period). If you are really motivated there are certain exercises you can do, and with some imagination, there are some pretty incredible dishes that can be made. I have seen some awesome cakes, burritos and even pizzas concocted. The only electronics allowed are your TV, a "Hot Pot" (mostly for coffee, beans or rice), a Walkman(though these are now banned at Big Muddy), a small fan (no air conditioning, and it is really hot in the summer) and an electric razor. It is common to sneak food items back from chow to add to your culinary endeavors. Several times a day they will call med line and those with prescriptions will line up to get their "skittles". They WAY over-prescribe meds, especially psychotropics, and they want to keep you docile and zoned out. Some inmates want this, but this is a huge mistake. They may use the record of your reliance on meds against you when determining your fitness to re-enter society, or in civil commitment actions. (More on civil commitment later).

You may have been issued a "call pass" which sends you to various functions and activities such as the barber, the library, dentist, health care, property, internal affairs (where they try to get you to snitch on your fellows) or counseling (a joke, more later).

   There is a shift change at 3:00, and they will do a count. At this time they will issue call passes for the next day, and distribute any mail you may have gotten. Mail is usually held up several days so they can inspect it , and sometimes read it if you have made a watch list, or randomly. Getting mail is usually a high point of your day, but like phone calls and visits, it can contain bad news from home which you are helpless to do anything about, and so can send you into a depression. And there is always the "Dear John" letter, or sometimes worse, the letter you were expecting but that will never come. Contact with the outside is definitely a mixed blessing. Any legal mail has to be opened in your presence, so they will call you down to the bubble separately for that, and you have to sign for it. If you mail a letter yourself, it has to be unsealed so they can inspect it. If you write "legal mail" on it, you can seal it, and they can't open it, so this is a great workaround(has to go to an attorney, though). Sending a letter costs .56, a "write out you purchase from commissary-if it's overweight they will weigh it and charge you first class no matter how heavy it is, so don't try to send any packages home, have it picked up. I once tried to send home my books and they wanted to charge $140 for it. You pay for shipping and stuff via a "money voucher" that you get from the bubble.

   For any reason or no reason your building may be put on "lockdown". Perhaps not enough staff showed up for work that day. Perhaps the ones that did just want a nice easy night, maybe there is an investigation of an incident two wings over. If there was a staff assault at at another facility, even if it's five hundred miles from you, the entire Illinois prison system is locked down. This is to prevent a co-ordinated state-wide riot. This means you will be locked in your cell 24 hours a day, sometimes for as long as two weeks. Food will be brought to you (ice cold), your drink will be a powdered "milk substitute", no showers (!), no movement, no nothing but staring at the walls with your celly the whole time. You will want to kill him, no matter how decent he is. Almost always, this will have nothing to do with you, or even your building. This is an extension of the pervasive policy that "everyone is guilty" that is found throughout the entire legal system. For example, one guy was caught sneaking a pepper (a pepper!) back to his cell from horticulture class. The entire class was not only cancelled, but eliminated. I was lucky enough for a while to play guitar in a band program (we were pretty good!). One guy got caught giving another a coffeeball (about one cup of coffee), and since the COs hated the band program, they used it as an excuse to shut the whole thing down. I was depressed for weeks. If one guy in a wing does something, the whole wing will be locked down. We were locked down during the Zimmerman trial as well as the Ferguson riots and the New York choking incident, even though those things happened in other states! We were locked down during Bulls playoff games, and you will be locked down for most major holidays (Merry Christmas!) By the time a lockdown is lifted you are angry, depressed, and ill from poor food, poor hygiene, and laying in a bunk twenty-four hours a day.

   Once a week, you are supposed to go to commissary to purchase hygiene items and food to supplement the subsistence diet you are given. Again, the COs and administration don't like you shopping for snacks, nor do they like that the money from inmate shopping goes to pay for amenities like cable and recreational equipment. They used to like it, when they weren't under scrutiny for stealing from the commissary trust fund. Several facilities were found to be pilfering, as well as padding the prices. They were required to roll back prices 7%. Now that there is no longer money to be had, they've gotten a case of "blue flu': they work slowly, only open one or two cashier windows, and take breaks every few inmates, so that now you'll be lucky to shop twice a month. The commissary staff is a different union then the COs and they are constantly battling the administration, so they'll go extra slow, or not restock shelves, so that when you do shop, there is nothing to buy. At Dixon, several times we arrived to shop and literally nothing was available. The "special programs" dorm once refused to shop at all and staged a protest, with the result that the program was de-certified (this is a dorm of the best behaved inmates). This wouldn't be so bad except that prisons have stopped issuing soap, detergent, shampoo, and other basic necessities, and now you are required to buy them yourself out of your state pay (just under $10 a month). This leaves little or nothing to buy food with.It can get pretty rank in there if you haven't shopped for a while.

   Food items available consist of gas station food- chips, cookies, pop, candy bars, coffee, as well as packs of extremely overpriced prepared food such as chile or BBQ beef, or food that can be prepared by adding heated (not boiling!) water in your hot pot, like beans, processed rice, or the ever popular Ramen noodles. Since this is all carb dense high calorie junk food, and there are no other pleasures available other than eating, big bellies are rampant. Cosmetics are of very poor quality. Very expensive clothing is available, some of which you'll have to have in the winter, like thermal underwear, a sweatshirt, gloves, or a stocking hat. Most of these are manufactured and sold to prisons by various prison industries, most notably a company called Bob Barker: that's right, the quiz show host and TV pitchman. (Prison issue slip-on shoes are  called "Bob Barkers".) Other celebrities heavily invested in prison industries are Oprah Winfrey, Michael Jordan, and Julias Irving. If you don't have someone on the outside putting money in your trust fund account you will starve or freeze.

   With a permit and $215, you can buy a cheap 13" TV that would cost  $49 at Wal-Mart, a 8" plastic fan, or a Walkman for $50. Special music cassettes (no metal screws) can be ordered from a catalogue, some go for as high as $40. They are just starting to implement an I-Pod program, though this wasn't in place anywhere when I left. The idea is you can download songs from a kiosk for a dollar each from an approved list.

   If you've had a bad week gambling, you can reach your limit pretty quick, and have very little left for yourself. If you run out, several well financed inmates run a two for one store- they'll sell you one item and you pay them back double at store time. This is very profitable for them, and at Dixon several guys had huge operations going (it's less workable in a lockdown joint). It's very easy to run up a huge debt (I've seen guys run up $400 bills), and a common practice is to "walk yourself"- voluntarily go to seg to avoid your creditors. Of course, you'll probably run into them at yard or gym, and then it could get ugly.

   Seg is an isolated cell, 24-hour lockdown, no gym, no yard, and you can be sent there for any reason or no reason. According to the rules, you can't be sent to seg without a hearing and a guilty finding, but like everything else, the rules rarely apply. A common trick is to lock you up for three weeks while you are "under investigation", but they rarely investigate, just send you to seg and then release you-no paperwork, and the prison looks like it's under control. Lots of inmates are found innocent after a hearing: small comfort after three weeks in a 6' x 9' cell.

   Seg will quickly make you crazy- it is near total sensory deprivation- that's what they do to prisoners during war time. All your property is confiscated- you are allowed nothing in there with you, and it usually take two months to get it back-if you're lucky. Personal property has a way of mysteriously being "lost or misplaced" by the property department, and there is nothing you can do. Pilfering from inmates is systematic and legitimized- "Don't like it? Don't come to prison." (This maxim is used to excuse any unethical or abusive behavior by the guards or administration.)

   Common offenses are trafficking and trading,(this includes sharing a book with someone- the only ticket I ever got was for loaning books to inmates, and the warden even approved of what I was doing. Unfortunately, a CO did not.) unauthorized movement (being someplace you're not supposed to be, or not being someplace you are supposed to be- this includes oversleeping, missing an appointment, etc) "insubordination" (mouthing off to staff, or even not mouthing off to staff- if you smirk at them, or have a bad attitude, it counts). Often insubordination results from unprovoked verbal abuse from a staff member-being called a faggot, say, very common, and if you respond in any way it's seg for you, and their partners will gladly lie to back them up. I wore a white hair tie for my pony tail and a CO called me out of a lunch line and announced "We do not wear soiled panties in our hair!" I said "Whatare you talking about?", and he repeated: "We do not wear soiled panties in our hair!", and the other COs said they would swear that's what I was doing. It is hard for me to keep quiet sometimes, especially when there is such an easy set up, so I responded "That's just not fair. You guys should be able to wear anything you want in your hair." I missed chow that day." Possession of contraband"- anything that's not supposed to be in your cell, usually harmless, like salt and pepper or a food item from chow, soap to clean your cell with (not allowed!), or a fuck book. Serious contraband like a shank, drugs or anything that can conceivably be used as a weapon will get you transferred out, so seg isn't used for that.

   Once you are out of seg, guilty or not, you are put on "C" grade for thirty (or more) days, with limited privileges and shopping limits until you work yourself back up to "A" grade ("B" grade is an intermediate status. In some joints, you may just be given "C" grade as a punishment, but not at Big Muddy-here it's seg for anything.)

  The character of people who are incarcerated will take a much more detailed and nuanced approach and I intend to do that in a later chapter, but in brief, most inmates are decent, polite, considerate, and not that much different than people you'd find on the outside. They will help each other out, volunteer to mentor other inmates, or to help those with disabilities (a huge segment of the population) and are not violent in any way. The true psychopaths are usually found on the other side of the badge- the COs (they get their own chapter too!) Many have personal and mental health issues and take out their problems on inmates because they are helpless to respond. There is a very fine line between COs and inmates- most are one DUI away from being in here themselves. Because of the expansion of things that are classified as jailable crimes, the prisons are full of people who have committed some minor, non-violent offense, so there really is nothing to fear in the way of violence. One inmate summed it up for me when I realized I was going to prison- "Don't gamble, don't borrow money, don't engage in homosexual activity, and don't get into others business and you'll have no problem".

   The single most important thing in determining what kind of time you'll do is the kind of celly you have. This is the guy you'll be spending 20 plus hours a day with in a tiny room. You'll eat together, sleep together, go to the bathroom three feet from his head and have to be there while each of you go through your personal torments and ordeal. If he's a good one, you'll be fine, if he's not, it'll be hell. There are many kinds- the screamer, who has to keep a running conversation going through the door with his friends at the other end of the wing about nothing at full volume, the clean freak, who is obsessively and fanatically cleaning all the time, so that he has something to hold over you in an argument, the player, who always has some kind of action going on so that there is always a dozen people at your door or in your cell, the bully, a 300 pounder who considers it his cell, and that you'll get along fine if you just do what he says, all the time, the snitch, who will make stuff up about you to curry favor with the guards or other inmates, the thief, who will take your stuff and then deny it to your face, even tho there's only two of you in the cell, the brooder, who will lay in his bunk all day whining about how he got screwed, (we all got screwed!) misses his girl, and just has to get out of here, the bug, who talks to himself, wakes up screaming, or paints the walls with feces, pig-pen, who never showers or brushes his teeth, the bloviator, who has an opinion about everything, the jailhouse lawyer, who can fix everyone's case except his own,- to name just a few. Just as important is figuring out which one you are, and modifying your behavior. Your celly is almost as close to you as your wife - closer! - and if you don't make some accommodations, your time can go excruciatingly slow. Most cellys, after a while stay out of each others way and don't talk much to each other- this is best in the long run.    You may ask your counselor for a cell change, or even to be put with a friend- sometimes this even happens, but they move people for no apparent reason, so you could get stuck with someone worse.

   A decent counselor can get some simple things done for you- process some paper, explain how some procedures work, etc. There are few good counselors, however. In fact, many are not counselors at all - some are COs, paralegals, or librarians slumming or filling in because there are no real counselors available. These know little about the job or the processes involved. We had two who could not even get access to our records. Most will just spin you the company line, or will even actively delay processing requests- this is actually their purpose: to appear to be available for guidance, while postponing any actual action. You can apply for a transfer to another institution, if you wish (only if the other institution has a class that is not offered where you are- you can't transfer just to be closer to your loved ones, or because you don't like it here), but these are almost always denied and you can't apply again for six months. Sometimes after four or five tries and evidence of good behavior they may move you.

   There is a grievance procedure but this is probably the biggest joke of them all. A favorite trick is to delay a few weeks and then "lose or misplace" the paperwork. Since you only have 60 days to file, they only have to do this a few times before you're past you deadline and the grievance is invalid. Since you don't have access to a copier, you don't have access to your stuff, so you have to start over from scratch. This happens all the time with grievances against COs or the administration. You are essentially trusting the filing of your paperwork to the very people you are filing a complaint against: "Here is my grievance, officer, can you file this for me?" "Sure, no problem" he says as he throws it in the trash. You can send your grievance directly to Springfield, but it will be denied because it did not go through the proper channels, the proper channels being the COs, counselor, and prison administration.

   If a grievance does make it into the proper hands, it can get some action- it can also get you marked for "special treatment" by not only the CO you filed against, but all his fellow COs. If that happens, you file another one claiming reprisal and if it continues, file again- it's a serious commitment, so be sure the issue is important enough that it's worth the potential grief you may be in for. COs have a definite "us vs. them" mentality, and to them all inmates are scum who don't deserve any rights. If you persist and persist (if you are in for a long sentence) eventually, finally, they will leave you alone.

   The very worst thing about prison, at least for me, is the fact that you cannot be productive, you cannot do what you do, or be what you are. I overcame this by writing (this article!), taking part in classes (more on education later), working out, and participating in every activity I could get into. I played on a softball team (two time all-star!), played tennis and volleyball at Dixon, and read probably a thousand books. If you don't, you will deteriorate both mentally and physically, and be useless to yourself and everybody else when you get out, and this is why prison is a failed policy- it makes good people bad, and bad people worse, and creates a permanent dependant underclass that is a drain on society, both while in prison and when released. The other worst thing is it takes you away from your family and loved ones- kids grow up without a father, parents take ill and even die and you can't be there, and these things pray on you. Prison is an incubator for mental illness, and it takes a strong person to go through it and emerge intact.

   There is so much more, the legal process,, the criminalizing of America, society's part and responsibility- and I will try get to every aspect of it in further posts and the eventual  book