Prison Prosecutions

Rene “Boxer” Enriquez, a famous ex-Mexican Mafia killer, explained prison prosecutions this way:

It was also clear that prosecutions for prison yard hits were rare. For one thing, there were no video cameras on the yards at the time. There was also a sense among law enforcement of what was referred to as the NHI factor: No Humans Involved. Why take the time to prosecute a killer who is killing a killer? ‘Stabbings were so common that they didn’t even tape off the crime scene, just picked up the knife and resumed play. A killing might get someone forty-five days in isolation,’ Boxer discovered, ‘or forty-five days off a parole date. That means nothing to lifers.’

Blatchford, The Black Hand, p. 43.

Lots of authors have written about how to discipline a child. The way I’ve heard it, there are three important features of successfully correcting a child’s behavior with discipline:

  1. Immediacy;
  2. Proportionality; and
  3. Certainty.

The punishment must take effect immediately, so that the child will recognize the connection between the bad behavior and the punishment. Delayed punishment loses that connection. The punishment must fit the crime. For example, a child should not be grounded for two weeks over failing to brush their teeth at night. And finally, the punishment should be certain. The child should not be left to guess whether or not they will get in trouble. They will be tempted to run the risk of slipping through the cracks or getting away with it. In other words, the punishment loses its deterrent power.

Discipline for prison crimes violate each of these rules. First, as everyone knows, prosecutions in California take a long time. To do a back of the envelope calculation, you might commit the crime, wait two days for arraignment, and then ten days for a preliminary hearing. Then there will be another 15 days before an information is filed. After arraignment on the information, there are 60 days for pretrial hearings and discovery, followed by a trial. Assuming the trial is completed in just one day, there are still another 15 days for sentencing. That’s 92 days from crime to punishment. Internal prison discipline also takes weeks, not days, to come to a resolution. An inmate might be assigned a staff assistant, who does interviews and other discovery on the inmate’s behalf. Then the inmate must be taken to a lieutenant’s office for a hearing on the rules violation. This hearing results in finding. All the while, the connection between the crime and the punishment is being attenuated.

Second, the consequences of a crime are not proportional. A stabbing on the outside might get you five years or more in prison. But on the inside, in the absence of a criminal prosecution, you may only extend your stay by 45 days. As Enriquez said, that is nothing. 45 additional days has no deterrent value to a long-term prisoner. More importantly, it is not a just punishment, since it does not fit the crime. Think of the stabbing from the perspective of the victim, for example. If your face was sliced open by a jail shank, would you think that 45 days was long enough? Your face wouldn’t have even healed by then.

Third, and perhaps most troubling, prison prosecutions are extremely rare. That is the first point that Enriquez makes in the quote above. From the perspective of effective punishment, this is a disaster, even though it is understandable from the perspective of the administration of justice. There are many reasons why a prosecutor may not want to prosecute a prison crime. Setting aside the “NHI” reason given by Enriquez, which is shocking but not compelling, there are many other reasons. The defendant may be serving a lengthy sentence on another crime. The victim of a stabbing, himself an inmate, will almost certainly not be cooperative. There may be colorable defenses like duress and self-defense. Many facilities do not have cameras, a basic safety device. A jaded prison inmate, with nothing else to do, may be much more likely to go to trial, and less likely to settle, like 95% of criminal defendants do, jamming up a prosecutor’s trial schedule.

All this adds up to one bad outcome: prison discipline and prison prosecutions are not an effective way to correct bad behavior as they are currently applied. Prison discipline should take effect immediately. It should be more harsh than it is: no more 45-day slaps on the wrist. Prosecutions should be initiated quickly and prosecuted with the smallest possible delay. Cameras should be installed to ensure certain consequences.

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