Greetings & Good hello. Today I want to talk about the utter legal helplessness – and often hopelessness – that we, the detained, face. This is peculiar to the detained, and does not include all of the accused, just those who get caught up in the system of warehoused meat upon which justice is performed.
When you are detained you become “managed” by an impersonator who takes on your role in the world and is not required to consult you or represent your interests in any way, shape, or form. This can be confusing because the legal term for this is actually “representation” – but, like so many terms of law, the meaning is not what you might expect. It is very much like one of the genie’s wishes in the tale of Aladdin – something that sounds wonderful, but is ultimately a curse. This is compounded when you are in the helpless posture of detention.
Let’s start with a shocking example – my erstwhile block-mate T, who was accused of first degree murder, meaning he was accused of planning and executing the act of slaying another person. T admits to an altercation that left him alive and another person deceased, and this was recorded on video. T argues, and I believe him, that the unfortunate result was a matter of self defense. Now, here is the rub – since T is represented, it is not T’s choice to make the case for self defense. T’s attorney must choose to argue for self defense and not, say, make some other argument like “that’s not in the video”. This can then become a tug-of-war between the defendant and representation, and the only lever the defendant has is to fire the attorney and start the case over.
Notice how “the truth” doesn’t play a part in this necessarily; and, if the defendant does not have an iron will, the defendant really can have no voice whatsoever, because they are “represented”. That is, the attorney impersonates, fully, the defendant, who might as well be placed in storage like defective meat.
Having someone impersonate you against your will and wishes, lying to the court in your name, and taking actions on your behalf while you scream in unheard protest is how we, as Americans, ensure your access to the courts. No matter how much you object, you have been represented! Your counsel will make sure that you show your appreciation in your statements to the “clear court record” as you speak “by and through counsel”. Once justice has been performed upon you, you can retrieve a complete record of your statements as your actions, by and through counsel, even if they are against your will and wishes. These are a matter of public record – forever confining your protest to permanent oblivion.
Now, you might be asking yourself if this portrayal describes specific cases or specific lawyers. Certainly this can not be the standard operating mode – I mean, we have all seen the television procedural dramas and we understand the trope. The accused is championed by the savvy lawyer who investigates and intrigues their way to save the day and see justice done. That, after all, is a good, inspiring story – and that is where it belongs, as fiction, for that is what it is – naught but a Hollywood trope.
In my short experience, the staggering repetition of a different story dominates the stage. Inmate after inmate struggles against disinterested attorneys and poorly-functioning institutions, some rising to the challenge of near or complete pro-se representation to fight for the chance to defend themselves in court, to avoid being steamrolled by an engine that equates arrest and detention with guilt, unless, of course, you come from sufficient wealth or circumstance to avoid the initial detention. Unfortunately, the more our society decays, the less likely this is to change because we desperately need the safety and simplicity of the illusion it provides.
Access to information
The manifestations of legal helplessness are not always as obvious or straightforward as direct conflict or contrasting interests. A great deal of helplessness comes simply from a detainee’s lack of access to information – to very basic information such as who is the alleged victim and how were they allegedly harmed.
In my case, as we near the 11th month of detention, I hope to be able to answer this question – for some reason the answer has been very difficult to pin down. I can clearly articulate the damage done to me to which I was responding, but obtaining clarity on the alleged harm I did is much trickier. I can only ask my counsel for this information, but counsel is under no obligation to provide it – because my knowledge of this plays no role in counsel’s representation of me. Although I have been accused of a crime, my knowledge of that crime is irrelevant – it is enough only that I understand the indictment itself, nothing more – and so goes the circus of justice.
Likewise, if I know facts about my situation that might exonerate me, there are no grounds or mechanisms by which I can use those – I must hope that my counsel decides to ask me for them. If my counsel does not, I can fire my counsel and get new counsel in the hope that they will ask the right questions.
Now, you might think – why not simply hire an attorney that you get along with and is on your side to begin with? That seems simple enough until you realize that you have no resources to start with – you have no directories or search engines, you may not even have the immediate wherewithal to make a phone call or send a letter. In theory you may have some rights, but the jailers operating the facility are under no obligation to tell you about them, nor are they likely to even know themselves. You are truly helpless, without resources, without options, and entirely at the mercy of your “representation”. Your representation, although it is your lifeline, is simply not incentivized to work for you in a fiduciary capacity except in very rare situations. One such situation is if you are very wealthy. Another such situation is if you are “connected”, taking that to mean what it may.
As you try to bootstrap yourself through a detention situation you are thus totally dependent upon your counsel to inform you of your options and your rights. Be careful: your counsel is always representing their interests while ensuring that your rights are defended – but they have no obligation to consider your interests, concerns, priorities, knowledge, or insight at all. They do not have any obligation to involve you nor bother with you at all, save for a few dog-and-pony parades to fit the ceremonies of the court and keep up appearances. They have no obligation to inform you of your rights or your options – so, often, you get offered information which gives you the illusion of control, progress, and work done on your behalf but is actually just steering you. This is where tools like the “law library” come in handy.
Many, but not all, facilities provide access to a “law library” – this is increasingly standardized as a website accessible on small tablet devices available to inmates. This tool is tremendous – it has all the court case history, state and federal codes, court rules, sentencing guidelines, civil and criminal procedure, etc. It is a great tool. Some facilities even have physical rooms with additional books and resources. Other facilities, like the one to which I am currently assigned, make a mockery of this resource. It is available on a common kiosk in the day room for 3 hours a day. Everyone needs this kiosk for all electronic tasks during these 3 hours, and you also need to get in your messaging, shower, phone calls, canteen, etc. during that window – so, your “law library” time is effectively 5-10 minutes at best. This counts as “having access” but is qualitatively useless. This amplifies your legal helplessness at the hands of the judicial system.
Guilty of being detained
These sorts of bureaucratic blockades are the norm for detainees, who are “guilty of being detained”. As one sergeant wrote to me, “If I don’t like the treatment, i should stop committing crimes”. The sergeant wrote this while blocking my access to the Administrative Remedy Procedure, which was a criminal act.
The concept of “innocent until proven guilty” has no reality in detention – it is just a lie the courts tell the public to garner support for their cause and to hide their dysfunction and ethical decay. In fact, blocking communications – such as blocking the flow of mail or cutting off phone calls – is a common tool detention centers use to keep detainees isolated and helpless.
At my current facility, “scheduling issues” which defy solution limit me to about five hours per month with my attorney. The need for a 20 hour discussion thus requires me to request three monthly extensions on the grounds that “I need another month”. For the protection of the court, my counsel agrees not to admit that the problem is with the administration of the facility chosen by the United States Marshal Service, or the lies told by AUSA Radics which resulted in this ridiculous detention. No, I need more time – and every month I find out just how and why I need more time when I find out what counsel said I said “by and through” my representation. At no point is the simple truth “I need time because the facility refuses to allow more than 5 hrs/month” stated – since that would mean the facility is acting illegally… gasp!
Smoke and mirrors
This is the reality behind that “clear court record” and that polished performance in the courtroom. The reality is a voiceless defendant who has been railroaded into a corner and beaten into submission using procedure and bureaucracy forged into blunt cudgels and wielded slowly and methodically month by month. Detainees are locked in rooms, without sunlight and with almost complete isolation from the world – except for one person, their “representation”. The one person they are allowed to access has no use for them and has no obligation to assist them in any way. The one privileged person is not a fiduciary – they serve the court and the defendant is simply “judicial product”. A detainee, a defendant, a person with real concerns, interests, a life, a family, and specific priorities and circumstances – is irrelevant to the progress of the American judicial system except at the one point where they admit guilt or profess innocence.
By ensuring helplessness and isolation, the court can use weaponized institutional dysfunction and procedure to frog march detainees to guilty pleas for no reason other than how to escape the nightmare of pre-guilt innocence. Thus we preserve the illusion of a superbly functioning system where arrest = guilt and “the feds have a 100% conviction rate” – this is not because the system works, it is because the system is sick.
So how can we fix it?
The democratic socialist revolutionary in me wants to rip it all down and start again from scratch. That’s what I get from reading people like Thomas Jefferson and other rabble-rousers who advocated dramatic restructuring of social institutions – but the world is much to fragile for the childish fantasies of the “Founding Fathers” or other pools of pot-smoking rich-boy idealists. As fun as it would be, real, manageable change needs to be piecemeal and it needs to be something that gets us from here to there without major shocks, without introducing new pieces into the puzzle, and which leverages the infrastructure that is in place, as dysfunctional as it is.
Let’s start with something simple – inmate onboarding.
I have now been at five facilities and it was not until I began filing a civil rights violation lawsuit against the fifth that I learned about the North Carolina Prisoner Legal Services. It wasn’t until my seventh week of detention at my fifth facility that I received a letter from NCPLS which gave me a basic overview of my rights, and gave me other addresses such as the North Carolina Department of Adult Corrections and the North Carolina Jail Inspector Office. I even learned that there was a formal Administrative Remedy Procedure which the jail was supposed to follow and I learned that I was wrong in believing the jail had a health care obligation to keep me alive – they do not.
Getting detained is inherently deadly, regardless of guilt or innocence. This sort of information is very helpful and should be made available to inmates upon intake – it is not. In fact, having now been through this process five times, it is safe to say they just throw you in, and you rely on other inmates to help you figure things out.
Other inmates are your friends and allies; the guards are the enemies. Guards are often untrustworthy, violent, belligerent bullies who are generally very stupid and sadistic. By bully I mean that in the classic sense – they are insecure and need to beat up on people in order to overcome their insecurity. Some are professional – a lot has to do with the “culture” of the facility, which in turn is set by the culture of the commanders. A sheriff with a mustache and a micropenis generally has bullies, while a confident sheriff has professional officers that don’t need to strut and threaten. Just like life. In jail, this already stressful, tense, volatile situation is hyperbolic and extreme.
Having clear communication between facility and inmates can do a lot to change the dynamic – almost all of the problems I have seen in jail have come from shitty jail communications. A simple, systemic change – a mandatory change – to correctly onboard inmates and communicate to inmates, as if they were people, would do a lot. The policies, like the NCDAC policy document, instruct the jails to do this, but the jails do not. The Jail Inspector and NCDAC, are clearly negligent – and, since I am in custody of the USMS, the USMS and thus Congress are negligent. I find it funny that one of the people I am fighting with for abusing his first amendment rights is also negligent for failing to correctly operate detention facilities. What a worthless turd.
Second, the bar needs to change the rules of engagement for defense counsel.
Currently the Bar blocks a defendant from obtaining additional legal counsel and the court confines representation to the specifics of the charge at hand. Without delving into the details, the incentives of appointed representation, retained representation, and the envelope of duties whereby each party operates is a mess. To some extent the Bar is the most agile and adaptive of the agencies and it can act immediately to alter the landscape of practice in favor of a more just system for the defendants.
Removing or altering blockages that ensure detainees are isolated and helpless at the whims of the fraternity of the Bar is perhaps a tall order for an institution historically dominated by wealthy white christian men – but, with the growth of the demographic to include a broader and healthier mix of genders, races, and religions we can be optimistic that we will see a flowering of evolved, and even learned, behavior.
If you, or someone you know, is an attorney, press them on the sad state of affairs in our courts. I am willing to bet you will suss out pretty quickly if they believe that “criminals get arrested” or if they believe there is a lot of crap in the operation of our system. This will, I bet, correlate well with the number of people they know who have been “in the system”.
Lastly, we need to celebrate and support organizations seeking to disrupt the current court status quo.
I came across some organizations, like Participatory Defense, which do just that. I saw other TED talks on my tablets while at one facility that allowed them. I am grateful to North Carolina Prisoner Legal Services. These organizations and more need soap boxes. The issues of legal reform, prison reform, and reform on all fronts are vast – because, let’s just face it, America doesn’t work.
Pretty much everything, all of our institutions – save perhaps our military, are for shit and an awful lot of folks are pissed off and unhappy – they are either sitting in North Carolina strung out on meth and fentanyl or storming the capitol trying to overturn an election. There is a mass shooting almost every day and our airplanes are having near misses faster than that because we can’t staff our airport towers.
As a healthy society, we suck donkey balls – but there are a lot of people trying to fix a lot of things. Instead of paying attention to a worthless bunch of grandstanding congressional idiots or even pissy presidents, we need to seek out and support smaller organizations with more focused agendas. We need to hold individual offices accountable – not politicians, they are largely useless and are the source of this trouble. Having been now in three North Carolina jails, I can tell you for a fact that the Jail Inspector’s office is failing. Are they underfunded? Who needs to go? Check with a place like NCPLS and get their advice – so far, they have been a breath of fresh air so I would say, support them at first – or at least get their recommendation. Just reach out – get active.
America decays because we forgot that America is “by the people” – we expect a country that is “for the people” but provided ready-to-use. Unfortunately, that is not how it works – or rather, when it works that way, it does not work in our interest.
Eric Charles Welton
Prisoner #94911
Columbus County Detention Center
March 14, 2024