The media has recently carried a rising number of stories of people who have been released from prison after serving very long sentences before they have been exonerated and finally set free. Most of the latest reported cases have been from the USA, where very serious miscarriages of justice do seem to be a fairly regular occurrence.
|US justice on trial|
In the past week alone we have had a man from Brooklyn released after serving 29 years in jail for a murder he didn’t commit; a woman from California freed after 17 years when her murder conviction was quashed and a man in Texas freed after spending nine years inside, four of those confined on Death Row waiting to be put to death for a crime he didn’t commit. Of course, as I’ve highlighted in a previous blog post – Guilty Until Proven Innocent – the British justice system has its own shameful roll call of scandalous miscarriages of justice.
I think that it is very difficult for most people who are unacquainted with the legal system to realise just how easy it is to fall victim to wrongful convictions, especially since the Criminal Justice Acts (1991 and 2003) changed the ancient Common Law provisions for disclosure of all evidence to the defence. Previously, all evidence gathered during a criminal investigation had to be handed over for the defendant’s legal team to inspect. Now, it is up to the Crown Prosecution Service (CPS) to make the decisions on what should be disclosed and what should be withheld and – as some of the worst miscarriages of justice have demonstrated – critical evidence that could help establish a defendant’s innocence before a jury is sometimes not made available.
|"And how does the defendant plead?"|
What is just as concerning is that, in many cases, the investigating police officers – who are supposed to carry out an impartial investigation – only opt to interview witnesses that they believe will help them secure a conviction. Against this background, how can people who are facing false allegations, or even cases of genuinely mistaken identification, hope to defend themselves, particularly in a era of swingeing cuts to Legal Aid? Following some of these trials can be like watching a train crash in slow motion. Many defendants are now fighting these cases with both hands tied behind their backs.
Indeed, almost every day the intention to create some new criminal offence is proclaimed by the government. Perhaps the American-Russian novelist and philosopher Ayn Rand was right when she wrote that: “There’s no way to rule innocent men. The only power any government has is the power to crack down on criminals. Well, when there aren’t enough criminals, one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws.” Sometimes it can certainly seem like that here in the UK.
Our ‘justice system’ – like that in the US – seems to have lost sight of some very important principles, including a person being innocent until proven guilty. As Voltaire put it so succinctly: “It is better to risk saving a guilty person than to condemn an innocent one.”
A fair few of those whom I’ve met in jail I genuinely believe are innocent men, failed by the legal system including lazy and unprofessional defence lawyers, as well as dodgy police investigations and the withholding of vital evidence. That, of course is of very little comfort to the wrongfully convicted or their families as the newly convicted or sentenced defendant is led off from the dock to be handcuffed before making the journey to the local Cat-B nick in a prison transport van.
|Transports the guilty and the innocent|
It can be painful to see the bewilderment of the truly innocent as they arrive in prisons to be stripped, photographed, given numbers and processed into new cons. No matter how humane Reception screws try to be, going into prison is often a deeply humiliating and dehumanising experience. Imagine having to go through all of that when you are entirely innocent.
Some of the newly convicted are in such deep shock at what is happening to them that they almost shut down mentally as a coping mechanism. For others, it seems like a very vivid nightmare from which they hope they will soon wake. They don’t and that first night inside the slammer – with all the noise, shouting, screams and banging of doors – can be a deeply traumatic experience for some. It’s unsurprising that many suicide attempts and much self-harm occurs in these early days in custody. As an Insider (peer mentor) I spent a lot of time with some very distressed men just in from court.
Moreover, it doesn’t just stop with the banging shut of a cell door behind you. A decision to fight a wrongful conviction can have a profound impact on daily life in prison. Not least because of the fact that our prisons, by their very nature, are primarily set up to deal with people who have been convicted of crimes that they have committed. Protestations of innocence just don’t cut it with Offender Managers (outside probation officers) or Offenders Supervisors (prison probation staff). They state that the prison system must respect the verdict of the jury and proceed accordingly.
In theory at least, while cons are on appeal against conviction they shouldn’t be put under pressure to confess to crimes they steadfastly maintain they didn’t commit. Offender Management Units (OMU) in prison aren’t supposed to try to bully appellants to do offence-related offending behaviour courses, mainly because these almost always require an initial admission of guilt and an analysis of the offence(s) as part of the programme. Obviously, an admission of any kind risks derailing the appeals process and potentially undermines protestations of innocence.
|Outside the Court of Appeal|
I’m always struck when I read media accounts of the wrongfully convicted having their convictions quashed that there is usually the obligatory observation that “he (or she) has always maintained their innocence”. Well, of course. Had they made any kind of ‘confession’ to a member of the prison staff, you can bet that would have been rolled out in a prosecution statement to the Court of Appeal and that, as they say, would have been that.
As I’ve explained in previous blog posts, the issue of maintaining innocence in prison can be a truly horrendous ordeal. Not only is there often unrelenting bullying from staff to ‘accept responsibility’ – difficult if you genuinely are the victim of a miscarriage of justice – but this can also have a devastating impact on quality of life inside the nick, especially since 1 November 2013 when the revised Incentives and Earned Privileges (IEP) system was imposed throughout the prison system in England and Wales by Justice Secretary Chris Grayling.
|Readers' letters reveal their misery|
This new Prison Service Instruction (PSI 30/2013) has mainly been criticised by prison reform campaigners (and prison governors) because the new rules mean that even though an inmate is a model prisoner in all other respects, he must still face the prospect of being demoted to the highly punitive Basic level within the IEP system, for no other reason than he is determined to maintain innocence. In recent months, newspapers aimed mainly at the prison population, such as Inside Time, publish regular letters from readers who are now on the Basic regime solely because they refuse to confess to a crime (or crimes) that they resolutely maintain they did not commit.
Of course, for prisoners who are serving life sentences or who are still on Indeterminate Sentences for Public Protection (IPP) – a penalty abolished back in 2012, but which continues to apply to anyone already sentenced – then a determination to make a stand can, quite literally, cost them the rest of their lives, regardless of whatever minimum tariff has been handed down in court. Being ‘in denial’ of an offence when you are serving an indeterminate sentence is almost always a barrier to being recommended for parole by the Parole Board, despite rather feeble protestations by the Board to the contrary. I think it’s probably fair to say that you’d be able to count the number of lifers freed on parole when they are ‘in denial of murder’ (IDOM) over the past 20 years on one hand.
|Grayling: gratuitous cruelty|
When these people maintain their innocence despite coming under incredible pressure to make false confessions of guilt to win parole or to keep their Enhanced – or even Standard level – privileges, then they have my admiration. When you see a fellow human being stripped of absolutely everything that has any real meaning to him before being locked into a bare cell, in effective solitary confinement with deprivation of any supportive human contact, for no other reason that he dares to continue protesting his innocence, then he has won my respect and admiration.
This sort of treatment may not be physical brutality in the same way as, say, being waterboarded or having your fingernails torn out, but it is a slower form of torture. In my opinion it is difficult to overstate the mental anguish, and often mental health problems, that can result from long-term solitary confinement.
Anyone who is going down that path of passive resistance needs to be extremely strong willed and determined, even when they are vulnerable and almost entirely powerless. I’m reminded of a line from a book about the Russian writer and dissident – and ex-con – Aleksandr Solzhenitsyn. It’s actually a quotation from the French writer and politician André Malraux: “The sight of a man saying no with his bare hands is one of the things that most mysteriously and profoundly stirs the hearts of men.”
Malraux is quite right about this. I’ve seen it among some of my fellow cons who refuse to be broken by Grayling’s inhumane and punitive IEP system and who will not compromise over their determination to maintain their innocence and, maybe one day, to stand on the pavement outside the Court of Appeal or Supreme Court having finally cleared their names. I wish them every success.