Monthly Archives: November 2017

Unhanging a jury

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Traditionally, juries have been required to reach a unanimous decision. A few states do allow non-unanimous convictions (such as by a 10-2 vote), but they’re in the minority. So what happens when a jury can’t reach a decision?

If a jury is well and truly stuck, the judge will declare a mistrial. The prosecutor has the option of bringing charges again (double jeopardy doesn’t prevent this), but of course that will involve lots of extra time and money for the government. Plus the accused and any witnesses will have to go through another trial. Judges really, really don’t want this to happen.

If the jury is hung, about half the states allow something called an Allen charge. Allen charges are allowed in federal cases as well. Named after an 1896 murder case, an Allen charge is essentially a plea from the judge to the minority members of the jury, urging them to consider joining with the majority. The charge emphasizes the potential costs of a retrial, and it points out that the evidence was strong enough to convince most of the jurors. It’s worded strongly enough that it’s often called a “dynamite charge.”

The Allen charge is controversial. Many argue that it’s coercive. For that reason and others, about half the states forbid it. In those states, if a jury is deadlocked, a judge may ask them to consider further. But if that gets them nowhere, a mistrial will be declared.

Off to prison again

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Last week I had the chance to tour Eastern State Penitentiary, which operated from 1829 to 1971. It was, arguably, the first modern penitentiary in the US. Last week I blogged about its philosophy; this week I have photos!

Like may 19th-century prisons, ESP looks like a fortress from the outside, an intentional part of the design.

 ESP was isolated from the rest of Philadelphia when first built, but the city soon grew around it. It’s only about a mile or so from the city center.

Originally, inmates were kept alone for the length of their confinement. The photo on the left shows a restored cell. Inmates were expected to work in their cell, and were given two daily 30-minute breaks in a tiny exercise yard (that’s what’s on the other side of that little door). They didn’t interact with anyone other than guards and ministers, priests, or rabbis. After a century or so, ESP abandoned this model for a variety of reasons. And as you can see in the photo on the right, the prison decayed considerably after it was closed and before it was reopened for tours.

I got some amazing photos of this place.

That photo on the right is a punishment cell. It’s half the size of a regular one, with no outdoor access.

If you’re in Philly, I strongly recommend a visit to ESP.

 

 

Solitary or silent?

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This week I’m in the middle of my fifth trip in two months, and this time I’ve transported across the country to Philadelphia. If I’m lucky I’ll get a chance to tour Eastern State Penitentiary (ESP). If I make the tour, I’ll post pics.

So today’s a good chance to discuss two competing early models of prisons. The first of these, called the solitary or Pennsylvania system, was pioneered at ESP in 1829. As the name suggests, inmates were locked up alone and were visited only by prison staff and clergy. The inmates were supposed to work during the day. It was thought that this system was more humane than the models of incarceration otherwise in use, in which large groups of prisoners shared cells–often leading to violence, victimization, and further criminal behavior. It was also assumed that solitary confinement would give inmates the opportunity to consider the errors of their ways and reform themselves. That’s why these prisons were called penitentiaries.

The competing model was called the silent or Auburn system, after Auburn prison in New York. In these prisons, inmates spent the night in solitary cells. During the day they worked together, but they were not allowed to speak to one another. Corporal punishment (flogging) was widely used. This treatment was intended to dehumanize them and turn inmates into obedient factory workers.

The Auburn system was ultimately more popular. For one thing, inmates kept in solitary confinement for extended periods tended to go crazy. Prison overcrowding—a problem even in the 19th century—soon made single-occupancy cells impossible. And from a practical viewpoint, inmates could achieve more work and more kinds of work when they were in groups. This factor became important when people realized the potential profits from prison labor.

Both the Pennsylvania and Auburn systems eventually fell out of favor, replaced by other models of imprisonment. But if you have a story with a 19th-century prison setting, you might want to research which of these models was in use in your jurisdiction.

Does TSA get TMI?

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I am fitting in a quick post right after trip #1 and before trip #2 (which will be closely followed by trip #3). Since all of these involve air travel, now is as good a time as any to mention the searches we must go through before getting on a plane.

By any measure, these searches are intrusive. They make us show ID (on my last trip, an agent was jovially playing Guess the Ethnicity of People’s Last Names). They go through all of our personal belongings, often in fine detail. They make us empty our pockets and take off shoes, jackets, and belts. They send us through a machine that allows them to essentially see us naked. And when mysterious blobs show up on the machine, they pat us down. All without the slightest suspicion that we’ve done anything wrong, or that we plan to. Doesn’t that sound like a violation of the 4th Amendment’s prohibition of unreasonable searches and seizures?

The courts don’t think so. They’ve ruled that plane travel constitutes a special circumstance permitting searches that wouldn’t be otherwise allowed. (Other special circumstances involve public K-12 schools and railroad and Customs employees.) When special circumstances exist, the courts take a balancing approach, weighing the degree of the intrusion against the need. Given the potential for hijackers and other violence in the air, the courts have concluded that what TSA puts us through is permissible.

Yeah, I wonder if the SCOTUS Justices have to go through that machine.

If you object to these searches? I guess you can always drive or take a train.

Incidentally, searches can be even broader at international borders. This means not just our physical borders with Mexico and Canada, but also seaports and airports that receive international flights. It also includes areas within 100 miles of our borders—and if you look at a map, you’ll see that this includes some pretty substantial population centers.

On a flight from Paris to Zagreb, I once forgot I had a penis-shaped brioche in my carry-on bag. It amused the French security guys quite a lot. Now I’m off to pack.