About this time last year I sat in a conference room in a hotel in New York surrounded by lawyers, homicide and vice cops, and journalists, while an academic demonstrated the wonders of a new lie detector test he was developing – the use of MRI scans to test a person’s truthfulness. In essence, he was showing us images of the brain and explaining that when the subjects lied, certain parts of their brain glowed red on the scan and that this could be transferred to the use of MRI scans in the criminal justice system, if a person responded to a question and a certain section of their brian glowed red on the screen then they were lying.
As I looked around the room I was amazed at how easily all these delegates who, by nature of their professions should have been overly inquisitive and skeptical, were lapping up this information. When I raised my hand and asked if anyone else was feeling as uncomfortable as I with these findings, based on tests with those who were not people under criminal investigation, I was greeted with a looks of distain. With the exception of a homicide cop, no one else in the room seemed to have a problem with the suggestion that this was the ‘future’ of interviewing defendants.
While I accept that I am not scientifically minded and as such can be skeptical of a lot of scientific findings, my main issues with this new lie detector model were that the testing was done on students, in a controlled environment, who had volunteered to take part in the research, they were all at least college level educated, and had been given a script, and had then been told whether they had to lie or tell the truth from the script. There had been no testing of defendants of low intelligence, placed in the extremely stressful environment of a police interview room, who were sleep deprived, had recently taken illicit or prescribed drugs. Neither had there been any testing of defendants who had good reason to lie to protect themselves or others, and who knew that they were in danger of facing a lengthy prison sentence.
Even worse, the fact that all of these people, who should have known better than just to accept findings without questioning them, had collectively accepted the findings, made me realize that a jury would be unlikely to question any of the findings. If the scan showed a brain glowing red, the subject would have lied, and hence the jury would have no reason not to find them guilty.
And that is the reason that the lie detector must be viewed with skepticism, it is rarely tested in the exact environment. I have spoken to many defendants in the USA who have been the subject of a lie detector, many felt scared of the physical element of the test, having wires attached to a cuff on their arm and chest. The demeanor of the person carrying out the test has a big impact on many defendants, some felt that they were being encouraged to answer in a certain way by the machine operator. The format of the questions can have a big impact on the answers given by the defendant. Finally the analysis requires someone to make an assessment of the findings, I have experience of the same defendant answering the same questions in three different tests and each assessor came up with a different conclusion.
In theory, the tests that have been carried out on sex offenders may have produced some results which can be seen as positive, but can they actually also be determined as truthful? And if the lie detector is introduced in this area, how long will it be before it is introduced into the criminal justice system in other areas. Beware the dazzling effect of the mumbo jumbo…..
The case of Miller and Jackson made the headlines in the USA and Europe last week, following the US Supreme Court decision that juveniles sentenced to Life Without Parole for homicide offences should be entitled to a new sentencing hearing. On first perusal this looks like a ground breaking decision of the US Supreme Court, but in reality it will do very little for most of the inmates who were sentenced to Life Without Parole while they were juveniles, other than provide many with false hope of release.
The circumstances of Kuntrell Jackson are very similar to those of Derek Bentley – all that separates them is a big pond and 60 years. Kuntrell Jackson was 14 at the time of the homicide, he and two others decided to rob a video store. En route to the store he realized that one of the others (Derek Shields) was carrying a firearm. Kuntrell Jackson waited outside of the store while the other two went inside. Derek Shields pointed the gun at the store attendant and asked her to give up the money. While the gun was still pointed at the attendant, Kuntrell Jackson entered the store, his version of what happened next is that he said to the others “I thought you all was playing..” the State version of events is that he said to the attendant “we ain’t playing”. Shields then shot and killed the attendant.
In most US States, felony murder attributes murder to all persons who had an intention to be involved in a felony and during the course of that felony a homicide occurred, regardless of whether the person actually killed or intended to kill. The fact Kuntrell Jackson had planned to rob the video store, and during that robbery the attendant was killed by another was sufficient for transferred malice, and for him to be sentenced to Life Without Parole for homicide.
The Opinion of the US Supreme Court in Jackson (and Miller) makes it clear that it has not given Jackson a get out of jail free card. The court’s opinion is very prescriptive, and much more narrow that its previous decision (Graham) concerning Life Without Parole for non-homicide offenses. The court has made it clear that Jackson’s case should be remanded, so that the court can determine Jackson’s intent with regard to the homicide,and reconsider the sentence. The US Supreme Court even went so far as to indicate that if Jackson did have the intent for Shields to kill the store attendant, then Life Without Parole may still be an appropriate sentence. Justices Breyer and Sotomayor went further and stated that ‘..this type of transferred malice is not sufficient to justify the intent to murder that could subject a juvenile to a sentence of life without parole…..The only juveniles who may constitutionally be sentenced to life without parole are those convicted of homicide offenses who ‘kill or intend to kill’. These Justices opinions are persuasive, but not binding, and in States where the courts were happy to rule that transferred malice is sufficient to lock a kid up for life, it is highly unlikely the courts will now look kindly on these persuasive views.
Hence, Jackson, and many others like him have another chance of putting their case across in the hope of some kind of reduction in sentence, at least they are getting chance of release at some stage in their life, a chance that Derek Bentley never received.
The State has locked them up in a 6ft cell and thrown away the key. Juveniles and Solitary Confinement in Florida.
With the current interest both in the USA and Europe in the practice of keeping inmates in solitary confinement, I thought I would share some of the thoughts and issues raised by some of the juveniles in Florida who have been sentenced to life without parole and who have spent time in solitary confinement.
Over the last two years I have worked with young men, who were all sentenced to Life Without Parole for non-homicide offenses they committed as juveniles. Most pleaded guilty to the offenses, thinking that they would get a plea deal, and all ended up with the maximum sentence the court court give. While the offenses for which they were sentenced should not be diminished, in at least two of the cases it is questionable whether the young men were actually responsible for the offenses. However, in these cases, both confessed, and their appeals against conviction have been heard and dismissed, so that avenue of argument is no longer open to them. What is open to them is the right to ask the court for another sentencing hearing due to the fact the US Supreme Court in Florida vs. Graham ruled that it is unconstitutional to sentence juveniles to life without the possibility of their sentence being reviewed to take into account their maturity.
One of the young men has to be one of the most difficult clients I have dealt with in my 20+ years of working in the criminal justice system. He frustrates me beyond belief, but every time I am at the end of my patience with him, I pick up the report prepared for his appeal against his sentence, which details the first 15 dysfunctional years of his life, and then his time in jail and prison, including extended periods of time in solitary (in some years he spent 10 or 11 months in solitary, only to spend a few weeks in general population, and then be sent straight back to solitary due to his behavior towards other inmates or corrections officers). I have calculated that of his total 12 years incarcerated, he has spent 8 of those in solitary confinement. The State gave up on him 12 years ago, locked him in a 6ft cell and threw away the key, I will not allow myself to so the same.
In all of the cases I have dealt with the offenses have been serious – rapes, armed robberies, and attempted murders. All the juveniles were treated as adults by the courts and therefore were detained in adult jails prior to conviction. All were experiencing jail for the first time and were held in solitary confinement during their time in jail. This was justified as providing protection to the juveniles, however in reality it was the start of a regime which dehumanized them. With 24 hour a day lock up for most days, these juveniles who were still in the process of developing and maturing were denied any contact with anyone other than the corrections officer who escorted them to the exercise yard two or three times a week, or less if it was raining. Even their exercise was taken in isolation, hence no chance to play basketball or bond with others experiencing the jail system for the first time. Peer contact which is so important to an adolescent’s development was denied, and even visits from family and friends did not provide the support and nurturing and reassurance required by most adolescents, due to the glass separating them from their visitor.
The recurring comments which came from these juveniles was that they gave up at this stage, they no longer had any interest in their case, or what their lawyers were telling them. They just wanted the isolation to stop. They wanted to get out of the tiny cell, painted grey, without windows, and where they were totally cut off from the outside World. Two of these juveniles attempted suicide in their early years in jail.
The fact that cases can take years to come to trial in Florida added to the despair of these inmates. The idea of having to spend the next four or five years in these conditions was a strong factor in some of them deciding to plead guilty. One inmate stated “if I pled guilty I knew I would go to prison and into general pop[ulation]’. Hence a motivating factor in these plea decisions was not whether they were guilty or innocent, but that they would be able to associate with others if they pleaded guilty.
For the majority of these inmates, home life and the family bond had not been very strong prior to them being incarcerated, and could possibly be argued as one of the reasons they had ended up being charged with these offenses in the first place. The longer the inmates languished in jail, the less they received visits from their family and friends. It is a recurring problem for the juveniles facing Life Without Parole, that those on the inside are cut off by those on the outside who want to get on with their lives, and give up hope of the inmate ever being released. In fact, with the exception of one of the inmates I have met, the only family contact is a birthday and christmas card and the occasional $30 added to the inmate’s commissary account.
While many of the juveniles had minor mental health problems when they first entered the jail system, mainly due to drug abuse, they did not exhibit serious mental health problems. However, by the time they were sentenced, over half had been assessed as having poor cognitive reasoning and exhibiting anti-social behavior, all of which was deemed to be a factor in justifying sentencing a juvenile aged 13 to spent the rest of their life in prison with no opportunity of a parole review. Never was it considered by the court that the reason the juvenile was exhibiting this behavior was due to the State incarceration. The State had given up on these juveniles, they were described by the Prosecutors as ‘bad’ or ‘untreatable’ or ‘damaged beyond repair’. Even worse, in most cases the defense lawyer did not stand up for their client and say that the State’s solitary confinement was the problem. If the lawyers had also given up on these juveniles, who else was going to care.
Florida vs. Graham was decided in May 2010. By this time, most of the juveniles sentenced to Life Without Parole had become adults. The task when trying to persuade the courts to reduce the sentence of these inmates is to show the courts that they are no longer dangerous and can be released back into society. That is not an easy task when the State has managed to dehumanize these young men, has made then anti-social. How can a young man who has experienced sustained periods of solitary confinement in prison, with nothing more than one hour of recreational time once every forty days, be expected to fit back into society and live and mix around his peers?
Psychiatric evaluations of these inmates now all indicate that they exhibit psychiatric problems – no wonder considering the way they have been treated and the lack of diagnosis and medication they receive in prison. These psychiatric problems provide the Prosecution with the justification for arguing that the inmate should remain in prison. The US Supreme court decision was that a Life Without Parole sentence for juveniles is unconstitutional, it did not say that a 70 or 80 year sentence is unconstitutional, not did it say that consecutive sentences were unconstitutional. Hence the fear that in some of these cases a Life Without Parole sentence will be replaced with two 40 year sentences, to be served consecutively.
During one visit with a prison inmate, he described to me the fact that since he had heard about his appeal, he had worked hard on his behavior and had requested that he be moved out of the highest level of confinement (CMI), to the second level (there are three levels of confinement in Florida state prisons). He was so pleased with himself as he was moved to the 2nd confinement level (CMII) and this meant he could go to the tv room f our times a week, and was allowed a two hour visit each time. He had not seen the tv for the previous two years due to being in CMI, where only a radio was allowed, and where he was only allowed 3 books a week and no commissary items other than stamps and writing paper. Sadly, a few days after my visit, he had an argument with another inmate, who he said stole his potato chips, and ended up back in CMI, where he remains to this day.
While the actions of the Senators in their review are encouraging, it does nothing for the forgotten incarcerated youth, who have entered adulthood as a prison number, with no one but themselves for company, in a space where they can stand in the middle of the room and touch the walls both sides, and where daylight is something rarely seen, and when they do see it, they can do little more than shuffle into it as they are shackled hands and feet.
Click here for the Florida Statute on Close Confinement/Solitary Confinement and the restrictions it places on the inmate ☞ Close%20Management%20Statute
In the USA, I have worked on 5 cases in the past year where an inmate convicted of a non-homicide offence, and sentenced to life without parole has been given the possibility of appealing the decision following the case of Graham v. State of Florida. There will be much more on this to follow, but in essence the ruling of the Supreme Court in Graham was that as juveniles are not fully developed, they should be given the opportunity in adulthood to show that they have changed and are no longer a danger to society.
This article from the National Geographic Magazine, although not scientific, makes interesting reading on this very point..