Ain't Nobody's Business If You Do

PART II: WHY LAWS AGAINST CONSENSUAL ACTIVITIES ARE NOT A GOOD IDEA

ENFORCING LAWS AGAINST CONSENSUAL ACTIVITIES DESTROYS PEOPLE'S LIVES


Show me the prison,
Show me the jail,
Show me the prisoner
whose life has gone stale.
And I'll show you a young man
with so many reasons why
And there, but for fortune,
go you or I.
PHIL OCHS
WHAT THE ENFORCEMENT of laws against consensual activities does to individuals is nothing short of criminal. The government is destroying the very lives of the people it is supposedly saving.
A single arrest, even without a conviction, is, in many cases, enough to ruin a life; a conviction and a year in jail are almost guaranteed to. All this, of course, is "for their own good." As the Horace of Spain (1559–1619) wrote, "No pain equals that of an injury inflicted under the pretense of a just punishment."
Let's take a look at the process of arrest, trial, conviction, and jail. Please don't think of this as something happening to some "criminal" who "deserves it." Think of it as something happening to you or one of your friends or relatives. If you have ever taken part in any consensual crime, it was luck alone that kept at least some of these things from happening to you.
As the song goes: there, but for fortune, go you or I.
When you are arrested, you are thrown into a world of violent criminals handled by individuals who are well-trained in treating people like violent criminals. Don't expect that you will be treated any differently. (A friend of our family used to regale us with both horror and laughter at the treatment he received during a consensual crime arrest. After recounting an indignity or personal violation, he would lift his hands to heaven and say, "Who was I gonna call? The police? They were already there!")

Once the law starts
asking questions,
there's no stopping them.
WILLIAM S. BURROUGHS

Prior to—or simultaneously with—the arrest, comes the search.

You can be home one evening watching TV when you hear a knock at the door. "Who's there?" you ask, having seen some nicely uniformed police officer in a documentary on crime prevention recommend that you never open your door without knowing who is on the other side.

"Open the door. It's the police. We have a warrant to search your premises." This is likely to be the only warning you get before your door is broken down (if a "no-knock" warrant is issued, you won't even get a first knock). The police automatically assume that you are (a) guilty and (b) hurriedly destroying evidence: flushing drugs, pornography, or prostitutes down the toilet. The door is opened (by you or by them) and, without a moment's hesitation, three or four or five or ten uniformed and/or uninformed police begin going through everything you own.


The [Supreme] Court
during the past decade
let police obtain search warrants
on the strength of anonymous tips.
It did away with the need for warrants
when police want to search luggage,
trash cans, car interiors, bus passengers,
fenced private property and barns.
DAN BAUM

Here a frightening question may cross your mind: how do you know whether these are really police? Answer: you don't. Even if they flash a badge, everyone knows fake badges are readily available. If you have the presence of mind to ask to use the telephone to call the station house to confirm that this is an authorized search, the request will almost certainly be denied.

So there you are, surrounded by a group of armed authority figures who are going through everything you own, putting "suspicious" articles into boxes or plastic bags, and you can only hope it's really the police and not some enterprising band of criminals. (On the other hand, maybe one should hope it is a band of criminals—stuff can be replaced; time in prison cannot.)

At about this point, you are "Mirandized." Amidst the hub-bub of your fish tank being drained (who knows what you may be hiding under the sand), your toilet being dismantled (lots of room for contraband behind, in, or "down there"), and every container in your kitchen being emptied onto the counter ("This stuff in the oregano jar smells a lot like marijuana"), being read your constitutional rights sounds something like this: "Mumble mumble you have the right to remain silent mumble mumble right to an attorney mumble mumble can and will be used against you mumble mumble do you understand?" And then, amidst this atmosphere of physical, emotional, and psychological terror, the questioning begins. By this time, often, you will be handcuffed.

You are asked about people, incidents, and things going back as far as seven years (the statute of limitation on most felonies). You are asked to remember where you were, who you were with and what you were doing at a particular time, on a particular date. If you're like most people, you don't remember what you had for dinner two weeks ago, much less what you did on a specific date two years ago, but "not remembering" is treated as a clear indication of "withholding evidence," "interfering with justice," being "uncooperative," and, of course, guilt. If you happen to remember something, anything, these comments will be carefully recorded, and, if you happen to have a more complete recollection later, it will be taken as a sign that "you truly don't have an accurate memory of the situation" or that you "lied to the police."


The right
to be let alone
is indeed
the beginning
of all freedom.
JUSTICE WILLIAM O. DOUGLAS

Once armed with a search warrant, anything the police recover of an "illegal nature" or even a "suspicious nature" is fair game. They can dismantle and destroy anything that might hold any illegal substance—and, considering how compact certain drugs are, this means that they can dismantle and destroy anything. They can take with them any "suspicious substances" for laboratory testing. This could include the entire contents of your medicine cabinet, kitchen pantry, and garage. Anything that might be used to "document" your criminal activity can be confiscated. This means all files, correspondence, notes, diaries, address books, phone bills, video tapes, audio tapes, and even your computer. If you do business from your home, a police search can put you out of business immediately.

Getting back your possessions can take weeks, months, and, in some cases, years. You may find yourself trying to reconstruct your personal and business records from scratch at a time when you need them most—while gathering evidence for your defense. Meanwhile, the police could well be calling all the people in your phone book or professional database, asking if they know you and, when they respond yes, asking them such questions as, "Do you know anything about this person's involvement with drugs (prostitution, homosexuality, gambling, etc.)?"


Under a government which
imprisons any unjustly,
the true place for a just man
is also a prison . . .
the only house in a slave State
in which a free man
can abide with honor.
HENRY DAVID THOREAU

Anything that might indicate what "kind of person" you are can also be seized, even if it's not directly related to a crime. This includes books on certain subjects, magazines, newspapers, even what station your television or radio was tuned to—anything that might make you look unusual, peculiar, unconventional, or make a jury of twelve "normal" people think you're pretty weird overall and probably deserve to go to jail for either the crime you are being charged or for the many crimes you've gotten away with.

Whether you're arrested or taken to the police station for "questioning" or on "suspicion," your property that hasn't either been destroyed by the police or taken with them is pretty much up for grabs. If the police broke down your door, they don't exactly call a carpenter and locksmith to make sure that everything is secure before they head off for their next round of searching and seizing. They may put some tape across the outside of your door, saying "POLICE LINES. DO NOT CROSS," which, to any burglar, means "LOOT INSIDE. OWNER SAFELY IN JAIL. WELCOME." One person who had been searched and seized told another who had gone through a similar experience, "After the police left, burglars came, ransacked my apartment and took everything of value," to which the other victim replied, "How could you tell?"

Sometimes you can't tell. If you're carted off before the police are finished searching and seizing, you may come home and not know the difference between vandalism, theft, and the work of professional law enforcement. If you can't get bail together quickly—or are held in jail for two, three, four days before bail is even set—you may never see any of your property again. If the police suspect you were using your home, car, or any other possessions for drug selling, they too will be immediately seized, and you may never see them again either. But, we're getting slightly ahead of our story.


If England treats her criminals
the way she has treated me,
she doesn't deserve to have any.
OSCAR WILDE

When you are taken downtown ("downtown" does seem to be the favorite euphemism for a police station; even if you live downtown, you will still be taken downtown), you will probably be put in some sort of holding cell (or, as they call it, a holding tank) for an indefinite period of time. (The Supreme Court says that you can be held for forty-eight hours without even being charged.) If you are lucky, you will be alone in such a cell. Most likely, however, what with jails at 101% capacity thanks to the rigorous enforcement of laws against consensual activities, you will probably find yourself in a much larger cell with some real criminals who have also been recently arrested—some yelling, some moaning, some covered in blood (their own or others'), some vomiting, and some with little or no control of other orifices.

Once there, you are a criminal. Period. No distinction is made between criminals whose crimes have innocent victims and criminals whose crimes do not. Even if you are not harassed, molested, abused, exposed to a contagious illness, or raped, the sights, smells, and sounds are hideous. The odor of one person vomiting, for example, can cause a chain reaction of retching to which few are immune.


The Supreme Court
is steadily eroding the protections
against police excess
promised by
the Fourth, Fifth, Sixth, Eighth
and Fourteenth Amendments
to the Constitution.
DAN BAUM
The Nation
June 29, 1992

Seldom do holding tanks have anything soft in them, such as mattresses, pillows, or blankets. Concrete, wooden, or metal slabs are the most that one can hope for, and even on these unforgiving surfaces—due to overcrowding—there is seldom room to actually lie down. If you are not physically strong enough to stake out your own territory you may end up sitting on the floor or standing until the police get around to questioning you, which might not be until some time the next day, or the next. (Suspects are sometimes intentionally put in the worst holding cells to "soften them up" for questioning.)

Then there is the questioning. Questioning is designed to be traumatic. Whether they use subtle psychological manipulation, hellfire and brimstone histrionics, or a combination of the two in the classic "good cop, bad cop" technique, questioning is designed to make you feel guilty about everything so that you'll confess your guilt about something. You'll be asked to explain pieces of your life pulled from the search and taken out of context: Polaroid pictures, journal entries, personal letters.

The courts have determined that, in order to get you to confess, police can confront you with evidence they have made up. They can show you drugs and claim to have found them in your house. They can show you affidavits signed by names taken from your address book accusing you of elaborate criminal conduct. The police will attempt to convince you that they have an airtight case against you on a greater charge so you'll plead guilty to a lesser charge.

Somewhere, you will be faced with yet another major choice. Could you—with one or two phone calls—contact a good, competent, honest criminal attorney? Few people know how to contact a criminal attorney because few people—including those who regularly take part in consensual crimes—think of themselves as criminals.


Criminal lawyer.
Or is that redundant?
WILL DURST

Eventually, the first wave of a very dark ocean known as The Truth About Lawyers reaches your beach. Criminal lawyers want retainers—that is, money up front of anywhere from $5,000 to $25,000. This is just the tip of the legal iceberg, which frequently runs into hundreds of thousands of dollars.

If you are arrested for a consensual crime involving drugs, it will be harder for you to obtain the services of an attorney than if you had been arrested for, say, murder. If an attorney takes your case for a drug charge and you are found guilty, the courts can force the attorney to give all the money he or she has made from your case to the law enforcement agency that arrested you. It's part of the assets forfeiture law. The courts have ruled that not only are your house, car, money, land, investments, bank accounts, and other tangible assets forfeitable, but everything you've paid your attorney as well. Consequently, criminal attorneys are hesitant to take on drug cases. Murderers, rapists, and robbers are getting better legal representation than pot smokers.

Many attorneys (un)scrupulously investigate the client's net worth and, lo, when the case is over, the final bill comes to within a few thousand dollars of this amount. If they can't justify charging all this money themselves, they call in any number of attorneys as "specialists" or "consultants." These same attorneys call your attorney in their cases to act as a "specialist" or "consultant."

The only alternative is to declare yourself too poor to hire an attorney, in which case you will be assigned a public defender who is overworked, underpaid, and sometimes not very good (which may be why he or she got a job as a public defender in the first place).


Government is like fire.
If it is kept within bounds and
under the control of the people,
it contributes to the welfare of all.
But if it gets out of place,
if it gets too big and out of control,
it destroys the happiness
and even the lives of the people.
HAROLD E. STASSEN

After you are arrested, questioned, and charged, you are arraigned. Basically, this is going before a judge who will set bail. Ah, bail. Let's say that your bail is set at a nice, low, reasonable $50,000. Can you put your hands on $50,000—in cash? From inside a jail? Can anyone you know (who would do it for you) immediately come up with $50,000 in cash? If the answer to these questions is "no," your choice is either (a) stay in jail until your trial (it might be months) or (b) visit the bail bondsman. Bail bondsmen take 10% of the bail in cash (they are kind enough, however, to accept Visa, MasterCard, and American Express). To put up a $50,000 bond, they take $5,000. Even if the charges are dropped the next day, they keep the $5,000. Still, if you can post bail in any form, you're one of the lucky ones: 51% of all those who go trial cannot afford bail and are jailed from the time of the arrest through the final verdict. If you're fortunate enough to have—or to have friends who will help you put up—the $5,000, you are then free to return to whatever is left of your previous life, much of which may have been confiscated under the assets forfeiture law.

You're also free to return to work. Ah, work. With the detention, questioning, arresting, arraigning, and gathering of bail money, you may have been in jail for several days, or several weeks. What do you tell your boss? In all likelihood, your boss already knows. The friendly detectives from the police department have already visited your boss, asking if you had behaved in any "unusual" ways which might indicate that you were involved in drugs (prostitution, gambling, sodomy, etc.).

You may be fired. If you argue (quite correctly) that you haven't been convicted of anything, and that one is, in our country, innocent until proven guilty, the boss will probably vaguely refer to something such as, "Where there's smoke, there's fire," or "At our company, we can't even risk the hint of impropriety."


Whenever the offence
inspires less horror
than the punishment,
the rigour of penal law
is obliged to give way
to the common feelings
of mankind.

EDWARD GIBBON
(1737–1794)

Finding another job will not be easy. An arrest, even if it ends in a dismissal or an acquittal in court, remains on your record. Many companies check for arrest records as a standard part of screening applicants. Banks, credit card companies, lending institutions, rental agencies, and others use it as an indication of credit worthiness. Even though it is blatantly unfair, and directly violates the tenet that you are innocent until proven guilty, many companies use a "record of arrests" as a reason not to hire you, rent you an apartment, or extend credit.

Ironically, the presupposition of guilt for consensual crimes is even higher than for violent crimes. If you are accused of, say, holding up a bank at gunpoint, even your boss might say, "Oh, I doubt it." If, however, you are accused of propositioning a hooker or smoking a joint, most people conclude, "Yeah, she probably did it," or "Why was he dumb enough to get caught?"

It is here that you go through the traumatic experience of finding out who your real friends are. Some might rally 'round with love, support, and material assistance. Others will practice the ancient wisdom, "A friend in need is a friend to be avoided."

Now, too, is the time when that church or religious group you've been supporting for so many years shows its true colors. If your alleged crime is one of the consensual crimes, chances are your church considers it a sin. Some clergy advise accepting the punishment for a consensual crime as an extension of God's punishment for having sinned and as a lesson not to do such a despicable-in-the-eyes-of-the-Lord thing again. Or they just avoid you and your calls altogether. In other words, don't expect a nun who looks like Susan Sarandon to appear and give you unlimited pastoral counseling.


Freedom does not
always win.
This is one
of the bitterest lessons
of history.
A. J. P. TAYLOR

And, of course, consensual crimes put an incredible strain on the family. If a significant other doesn't know about his or her partner's forays into consensual crimes, an arrest is a shocking way to find out (The Hugh Grant Syndrome, Part II). If the significant other does know and, perhaps, even takes part in the consensual crime with his or her partner, there is still lots of room for incrimination. "I told you not to bring that stuff in the house!"

A consensual crime arrest could cause parents to permanently lose custody of their children. In Oregon, for example, if you are arrested with even less than an ounce of marijuana, you can be charged with "endangerment"; your children can be taken from you and placed in the state's foster care system. Statistically, your child has, while in that foster care system, a 20% chance of being either physically or sexually abused. The children will also be exposed to kids who are, themselves, criminals. What innocent children might be forceably exposed to could destroy their entire lives.

If you're engaged or dating someone, how will he or she take it? We all like to think that our beloved will stand resolutely by our side. Yes, that's what we all like to think.

And what if it was one of your children, or one of your brothers or sisters, or even one of your parents who was arrested? How much of your time, energy, and, most importantly, financial resources could you commit to keeping him or her out of jail? Successfully defending a criminal prosecution can cost hundreds of thousands of dollars. Where would you have to draw the line? Your savings? Your home? Your credit limit? It's traumatic having to put a dollar amount on the people we love, but when they're accused of a consensual crime, that is what we must do.


Imprisonment,
as it exists today,
is a worse crime than
any of those
committed by its victims.
GEORGE BERNARD SHAW

It's little wonder, then, that, at this point, most people accused of consensual crimes seriously contemplate suicide. Not only is one's own life in shambles—the loss of possessions, living space, savings, reputation, job, friends, future—but the fear of being a burden on the friends and family who are willing to help is a pressure some people cannot bear. All this despair, combined with the fear of prison, can make suicide seem not only the most logical, but the only solution. At the very least, one finds oneself in an ever-deepening and seemingly bottomless depression. (If this chapter is becoming too depressing, please remember that, unlike the consequences of being arrested for a consensual crime, this chapter does have an end.)

If you choose to stay alive (which, by the way, I recommend), now starts the seemingly endless round of hearings, motions, further questionings, preparation of defense, and waiting, waiting, waiting. One thing you will not have to wait for are your attorney's bills. These will come on time, and you will be expected to pay them on time.

Somewhere along the line, plea bargaining begins. Anyone who says that gambling is illegal in the United States needs only look at plea bargaining to know this is not the case. In plea bargaining, you are asked to gamble the rest of your money or the rest of your life on the verdict of your trial. Rather than go for an all-or-nothing, guilty-or-not-guilty, on the charge for which you are accused, you agree to plead guilty to a lesser charge with a preset lesser sentence. If you accept the "bargain," you will have a permanent criminal record—not just an arrest, but a conviction—and you may spend some time in jail, but less time than if you were found guilty of the original charge. The good news, however, is that the legal bills stop; the interminable waiting is over; and you can get on with what's left of your life. If you want to bet on The Trial, however, it means that the legal bills begin to escalate, and, if found guilty, you will almost certainly get a worse punishment than you would have if you had pled guilty to the lesser charge. (Prosecutors and some judges don't seem to like pushy people cluttering up the court systems looking for justice.)


The highest patriotism
is not a blind acceptance
of official policy,
but a love of one's country
deep enough to call her
to a higher standard.
GEORGE MCGOVERN

A plea bargain may be the only economic alternative. It's hard to get a job when an employer discovers you are awaiting trial and may have to "go away" for, oh, five years at some point in the indefinite future.

Once the credit card companies find out about your arrest, they'll probably start canceling your cards. (If you use a credit card with the bail bondsman to get out of jail, that's a red flag to credit card companies.) People awaiting trial, you see, have this nasty habit of going bankrupt. Can you imagine why? Lawyers know this too, which is why they work very hard to be paid on a regular basis. (Bankruptcy attorneys want the full amount up front before they even touch a case.)

If you go to trial, you usually have the choice between a jury trial or a trial before a judge (a "bench trial"). When charged with a consensual crime, you are dealing not just with the facts of guilt or innocence; you are also dealing with individual prejudices. On hearing what you're accused of doing, will the prejudice of the jury be such that your guilt will be presumed and the trial merely a formality? Judges tend to be a bit more sophisticated, having dealt with real criminals who go around raping, robbing, and murdering, but judges have their prejudices too. They also have political pressure. During a "crackdown" or "war" on this or that consensual crime, a judge is more likely to find guilt and sentence heavily. Economics enter the picture once again: jury trials tend to last longer than bench trials, and legal fees during criminal trials often run $2,000 to $5,000 per day, per attorney. (If they don't have all your money yet, your attorneys will strongly recommend that you have at least two attorneys representing you at the trial. If you're rich, they'll suggest an entourage.)


Judge:
a law student
who marks his own papers.
H. L. MENCKEN

Prosecutors hate to lose. If the trial seems to be going in your favor, you will be offered better and better plea-bargains. Your attorney doesn't want to lose either (it's very difficult to collect a final bill from a client who is in prison); so, if the case seems to be going against you, your attorney will recommend accepting poorer and poorer bargains.

Meanwhile, everyone is involved in the psychological guessing game of "reading the jury." Who's on our side? Who's not on our side? This process begins with the selection of the jury and continues throughout the trial. If you have money, your attorney can hire a professional who will, during the selection process, do on-the-spot instant psychological profiles of each potential juror along with a recommendation as to whether or not the juror would be favorable or unfavorable to your case. Once the juror is selected, investigative companies can give overnight reports as to the net worth, politics, religion, marital status, sexual preference, and spending habits of each juror. This overnight profile costs, oh, $5,000 to $15,000 per jury, and, if you can afford it, your attorney will claim it's "an invaluable tool" in helping to "shape" your defense.

A lot of invaluable tools are available, and the more valuable you are, the more invaluable they become. There is, for example, the expert witness. The expert witness is a professional who is paid an exorbitant amount of money to give the "expert opinion" that you are right and the state is wrong. A popular expert witness in consensual crime trials is the psychiatrist. For, $3,000 to $10,000 each (you'll want at least two), the psychiatrist will "examine" you and claim that you're not a criminal, you're just sick; you don't need jail, you need treatment. Why, with a year or two of therapy you could once again be a productive member of society. (The only thing that made you an unproductive member of society, of course, was being arrested, but it's best not to mention that at this point in the trial.) Yes, if you were sentenced, that is, if the court referred you to five psychiatric sessions per week for a year, that would be much better for you and all of society than that same year in the Big House. And, if the court takes this suggestion, that's only another $25,000 to $50,000 out of your pocket.


A jury consists
of twelve persons
chosen to decide
who has the better lawyer.
ROBERT FROST

When the case finally goes to the jury, the high-pressure waiting begins. Juries can deliberate for several minutes or several weeks. The plea bargaining can still continue. Until the jury actually announces its verdict, it isn't a verdict, and, if a bargain is struck, the judge can call in the jury, thank them for their efforts, and send them on their way.

If the verdict comes back not guilty, you do not get back your legal fees, the arrest remains on your record, you most likely won't get back your job, and you probably wouldn't want the friends, family, or fiance who deserted you. You will get back the evidence that was seized during the initial search (it will have been gone through, categorized, labeled, disassembled, much of it will be missing—but you'll get it back). Even if you are found innocent, you still must go to court again to get back your house, car, and money—whatever was seized under asset forfeiture laws.


JUDGE: Are you trying to show
contempt for this court?

MAE WEST: I was doin' my
best to hide it.
If you are found guilty, the next wait begins: the wait for sentencing. During this time, you can choose whether or not to appeal your case. "An appeal," explained Finley Peter Dunne, "is when you ask one court to show its contempt for another court." If you thought the first round of legal fees was expensive, when you move into the world of appellate courts, legal fees go into hyperdrive.
You can appeal for a mistrial. Here, you are asking the appellate court to declare your original trial invalid because of a technical legal error made by the judge, jury, or prosecution. If you are successful in winning this appeal, your trial will be declared null and void—but that doesn't make you free: you have to start all over again with another trial, another jury, another round of legal fees.
You can also appeal on constitutional grounds. Your lawyer can claim—using some of the brilliant arguments given in the chapters, "Laws against Consensual Activities Are Unconstitutional" and "Laws against Consensual Activities Violate the Separation of Church and State, Threatening the Freedom of and from Religion"—that the very law violates your constitutional rights and that the court should overturn the law. Here, you are looking at cases going to state supreme courts and, perhaps, even the federal Supreme Court. You are also looking at legal fees, not in the hundreds of thousands, but in the millions. (Most cases involving individuals that reach the Supreme Court are paid for by organizations such as the ACLU, who are doing it not just for the individual, but to set a legal precedent that will affect others.)
While the case is on appeal, if you don't want to spend time in jail, there is a little matter of additional bail. You are now, in the eyes of the court, a convicted criminal; thus the new bail will probably be higher than the first. Not everyone can meet bail, of course. Most people can't afford anything other than accepting their sentence and doing their time.

They call it
the Halls of Justice
because the only place
you get justice is
in the halls.
LENNY BRUCE

Let's talk about doing time.

If you've never visited a penitentiary, you might want to do so. The worst ones, however, are rarely, if ever, open for public inspection. The average citizen would be reluctant to send even a real criminal, much less a hooker or a pot smoker, to such a hideous place.

Here's what Jimmy Hoffa—who served time in and visited many prisons—had to say:

I can tell you this on a stack of Bibles: prisons are archaic, brutal, unregenerative, overcrowded hell holes where the inmates are treated like animals with absolutely not one humane thought given to what they are going to do once they are released. You're an animal in a cage and you're treated like one.

Thanks entirely to the crackdown on various consensual crimes, prisons—never designed for comfort in the first place—are overcrowded. Cells designed for two inmates are holding three, sometimes four. Even spending, as we are, $5 billion per year on new prison construction, this overcrowding is likely to continue into the indefinite future.


[The prison guards are]
capable of committing daily
atrocities and obscenities,
smiling the smile of the angels
all the while.
JEAN HARRIS
The first two things you'll notice on entering a penitentiaryYour Show of Shows a little while to figure out: BIG MIKE: "While I was in solitary, I spent a lotta time thinkin'. I did a lot of thinkin'. I thought about the walls . . . the bars . . . the guards with the guns. You know what I figured out?" OTHER CON: "What?" BIG MIKE: "We're in prison." are the noise and the smell. The smell is body odor, cigarette smoke, unflushed or backing up toilets, diarrhea, vomit, and wafting through it all is the strange but clearly unpleasant aroma of the mysterious substances the prisoners are fed. The noise is a cacophony of televisions, radios—all tuned to different stations—boom boxes, and voices. Some of the voices are shouting. Some of the voices are babbling. Some of the voices are singing, chanting, or praying. Some of the voices are communicating. Because the person they are communicating with could be several cells away, to the untrained ear the conversation sounds like the rest of the yelling. (Sometimes twenty or thirty of these conversations are going on simultaneously.)
There is absolutely no privacy. A toilet (with no toilet seat) is bolted to the wall of each cell. It is usually only inches from the bottom bunk. If it becomes clogged and will not flush, it may take several days to get fixed, but the prisoners have to use it anyway.
There is little ventilation. This keeps the smells and any airborne bacteria or viruses carefully contained. Air conditioning? Hardly. It's sweltering in the summer and usually over- or under-heated in the winter. It is a textbook breeding ground for misery and disease.

Don't do drugs
because if you do drugs
you'll go to prison,
and drugs are really expensive
in prison.
JOHN HARDWICK
There are few telephones. Needless to say, it's pay phones, collect calls only. Visitation days are once a week (in some prisons, once a month) and you usually see your friends or loved ones (those who are willing to travel the hundreds, sometimes thousands of miles) through a thick, plastic partition. No touching is permitted. In some prisons, you talk by telephone as the separation between the two of you is not only bullet-proof but sound-proof. These conversations may be monitored and recorded. The prisons that allow conjugal visits only do so only every few months.
In most prisons, reading is limited to what's in the prison library. In many prisons, reading material must be sent directly from the publisher. Books, magazines, or newspapers sent by individuals are returned or destroyed. That means if you want to read a book that's out of print (which most books are) or is printed by a publisher that does not do direct mail order, you are out of luck.
Then there's a matter of money. Except for the absolute necessities, you must pay for everything: books, stationery, postage, cigarettes, cassette tapes, your television, everything. You can make this money at a prison job that pays approximately twenty cents per hour. If you are transferred from one prison to another—which can happen at any time and as often as the penal authorities dictate—you must leave all but the basic necessities behind and start over.
If you are marginally young, marginally attractive, or white (and heaven help you if you're all three), your chance of being raped is about as good as your chance of getting a cold or the flu. Even if you go to a prison that makes an attempt to separate "likely targets" from the rest of the prison population, rape doesn't take long—and who is to say rape is not going to take place within that separated population?

The solution to our drug problem
is not in incarceration.

RETIRED GENERAL BARRY MCCAFFREY
U.S. Drug Czar
Los Angeles Times,
March 6, 1996

Rape in prison is something of a sport, like hunting. Devout heterosexuals, who would just as soon kill (and may have killed) a male who approached them with a sexual proposition, seem to become sexually ravenous as soon as the prison door slams behind them. Rape, of course, in any situation is not a sexual act; it is an act of violence, domination, control. The macho sport in prison is who-you-can-get-how-often-and-when. The only way to keep from becoming an open target and susceptible to gang rapes and individual hits at every possible opportunity is to become the "punk" of the most powerful hunter you can. He will then protect you from all the rest—although he may occasionally trade you or give you as a gift to one of the other hunters.

By the way, if you report any of this to the authorities, you will be killed. It's that simple. Turning in a fellow prisoner will mark you, both in and out of prison, for the remainder of your life (which will not be a long one).

Although rape is excruciatingly painful, humiliating, and degrading, if you don't die of hemorrhaging, there's always AIDS. Due to the high incidence of intravenous drug use, both in and out of prison, and completely unprotected sexual activity inside of prison, AIDS has reached epidemic proportion within the prison system. In 1991, 15% of all deaths in prison were AIDS-related. Condoms, of course, are not provided by most prisons. Prisoners are not supposed to be having sex; therefore, they're not; therefore, they don't need condoms. Even when condoms are available, rapists tend not to use them even to potentially save their own lives—it just isn't very macho.


Do you think someone
who is about to rape you
is going to stop and
think about a condom?
ELI ADORNO
Quoted in the New York Times

As a perpetrator of a consensual crime, you will probably end up at the bottom of the prison pecking order. Every one seems to know, even before you arrive, exactly what you're in for. In prison, consensual crimes are thought of as somewhat wimpy things, and since your crime did not involve violence against another person or another person's property, it will be assumed that you won't fight back. You will be taken advantage of at every opportunity. Your pillow, blanket, and even mattress may be "borrowed" by another cellmate. Your clean towel will be exchanged for a dirty one. Any food that is even marginally edible will be consumed by others. ("You don't want this, do you?") Your hunter, by the way, will not protect you from all this; he is only there to protect you from sexual attack. If you want additional protection, you will have to provide additional favors: money, cigarettes, running errands—little tokens of your appreciation.


Pretty soon,
there will not be any
debate in this city
about overcrowded prisons.
AIDS will take care of that.
DISTRICT ATTORNEY MARIO MEROLA
When you are sentenced to prison, you are enrolled in the Institute of Higher Criminal Learning, the world's foremost university of crime. Here, you make contacts and learn a new trade. It's obvious that, if you are unable to get a job while awaiting trial, you certainly aren't going to get one as an ex-con. At least not in the pristine nine-to-five world of American business. To make a living when you get out, you have two choices: become a professional writer or become a professional criminal. The professional writing game seems to be pretty full, what with Stephen King turning out a new book every three weeks and Norman Mailer no longer sponsoring former prisoners with literary aspirations. With writing unavailable, that leaves the alternative form of crime: crime.
As with the prison pecking order, having a conviction for only a consensual crime does not look very good on your criminal rsum. Fortunately, in prison you will have many opportunities to prove yourself worthy of recommendation to one of the outside criminal organizations. You could show your daring, for example, by distributing drugs within the prison. Doing this, you might even be able to put a few dollars aside over and above your weekly protection payment. Smuggling weapons, either into or around the prison, is always popular—and will get you points for courage. Even if you don't want to be a part of some of the more serious crimes for which those weapons are used, being a lookout while those crimes take place can get you high points for low risk.
What does the state give you on release? On what can you start a new life? It varies, but usually it's $100 and a new suit.

Crime is contagious.
If the government
becomes a law breaker,
it breeds
contempt for the law.
JUSTICE LOUIS D. BRANDEIS
Meanwhile, whatever remnants of a life you had on the outside are now almost entirely gone. Loves find other loves. Friends find other friends. Apartments get rented to other tenants. People change and, more importantly, so do you.
Prison is a crash course in the darker side of life. Few survive it without becoming a different person: more cynical, jaded, fearful, angry. It's hard to trust again, hard to believe, easy to hate a system that destroyed your life behind the pompous pretense of "saving you from yourself for your own good."
Even without police intervention, the laws against certain consensual activities make them far more dangerous than they need to be. Activities involving consensual crimes are completely unregulated—either by governmental or private consumer groups. It's not the law of the marketplace but the law of the jungle that prevails.
The list of these unnecessary risks is long indeed. Here are some obvious examples:

When is conduct a crime,
and when is a crime not a crime?
When Somebody Up There—
a monarch, a dictator,
a Pope, a legislator—
so decrees.
JESSICA MITFORD
  • Low-grade marijuana is sometimes laced with the drug PCP to make the pot seem more potent. It's hard for users to know whether or not they've gotten great pot or PCP pot. Alas, PCP is far more damaging than even the most potent marijuana. Similarly, LSD is sometimes "enhanced" (without the buyer's knowledge) with strychnine, a lethal poison.
  • When dosages are unknown, it is difficult for the user to moderate consumption. If marijuana were legal, for example, the THC (the psychoactive element in marijuana) level could be printed on each package. People could then intelligently moderate their usage. As it is, one joint could have twenty times more THC than another, and the user—short of trial and error—has no way of knowing. This becomes particularly dangerous when it comes to driving, operating machinery, or even cooking. With regulated, legal alcohol, one can moderate intake. The same is not true of uncontrolled substances.
  • Gay bars, coffee houses, and bookstores are often forced into the less-than-savory parts of town. The higher crime of these areas is visited upon the gay visitors and makes preventing hate crimes such as gay-bashing more difficult.
  • 
    The first duty of government
    is to protect
    the citizen from assault.
    Unless it does this,
    all the civil rights and
    civil liberties in the world
    aren't worth a dime.
    RICHARD A. VIGUERIE
  • The real crime (violence, robbery, extortion) often associated with consensual crimes often takes place only because the consensual crimes are crimes. A customer robbing a prostitute or a prostitute robbing a customer would be far less likely to happen, for example, if both prostitutes and bordellos were licensed. In that case, either party could call the police if a nonconsensual crime took place.
  • Because those who take part in illegal consensual activities do not have access to the civil courts to resolve differences, a great deal of vigilante violence takes place. Almost all gang violence, for example, is drug related—protecting turf, collecting debts, enforcing punishments.
  • If gambling were legal, credit could be extended to gamblers based on the prevailing credit policies of the aboveground marketplace. ("Sorry, a $100 bet takes you over your Visa credit limit. Do you want to put part of this on your MasterCard?") As it is, credit is extended in a haphazard fashion and collection techniques are more intrusive and violent than even those practiced by DiscoverCard (although I know that's hard to believe).

    By now, however, we are veering into the chapter, "Consensual Crimes Encourage Real Crimes." (This chapter is about ruining lives. Having your arm broken by the Mafia would probably not ruin your life. It may play havoc with your penmanship for a while, but your life would go on.)

  • 
    You've got to rattle your cage door.
    You've got to let them know
    that you're in there,
    and that you want out.
    Make noise. Cause trouble.
    You may not win right away,
    but you'll sure have
    a lot more fun.
    FLORYNCE KENNEDY

    At any rate, I'm tired. Do you need a break? I do. Thinking about the 4,000,000 arrested each year and the 750,000 currently in jail for consensual crimes is exhausting. "It's all so solemn," Pauline Kael observed, "like Joan Crawford when she's thinking."

    NEXT BACK" TOP CONTENTS

    Peter Mcwilliams Home Page

    Order the Book

    Copyright 1996 Peter McWilliams & Prelude Press

    Site Credits