No Lawyers Allowed

by Alisa Roth

On the afternoon of June 30, 2003, Derrick Hamilton was escorted downstairs to face his fate, at a disciplinary hearing at Attica Correctional Facility in upstate New York.

The hearing officer was Jim Kennedy, a man Hamilton remembers like this: “kind of stocky guy, with salt and pepper hair. A round face. Kinda tall. No mustache that I recall….”

Although the hearing would have serious implications for Hamilton’s future, it bore few of the hallmarks of a regular courtroom. There was no defendants table, no judge’s bench, no jury box.

And, unlike in a regular criminal proceeding, Hamilton was left to fend for himself. No lawyers are allowed.

Prison disciplinary hearings are what happen when you get in trouble in prison. The corrections equivalent of being sent to the principal’s office. The difference is that where a visit to the principal might earn you detention, or a call to your mom, prison disciplinary hearings have serious, potentially long-term consequences. Consequences like solitary confinement, which, while bad enough on its own, can also mean lack of access to classes and other programs that might get you out sooner. And time in solitary can be a reason for parole boards to deny parole.

It all starts when a corrections officer writes you a ticket for a violation. It could be for an actual criminal offense, like murder. But more often, it’s something much less significant, like getting in a fight or possessing contraband.

“I asked to go to the bathroom, and I waited about an hour. I was either going to urinate on myself or urinate in a soda can. I chose the soda can.” — Derrick Hamilton

Hamilton was facing two accusations. One for urinating in a soda can; the other for refusing to take a drug test. At the time, he was in solitary confinement. His wife came to visit, and when you get a visitor in solitary, you sit inside a cage, your visitor sits outside of it. And you can’t leave the cage without a corrections officer or two to accompany you.

“At this particular point in time,” Hamilton said, “I was definitely seeing a urologist for a prostate problem that I had and I was getting medication that was causing me to urinate frequently. So I asked to go to the bathroom, and I waited about an hour. I was either going to urinate on myself or urinate in a soda can. I chose the soda can.”

The officer who was watching the visit on the monitor said he saw Hamilton put his hands in his pants. So he ended the visit and wrote Hamilton two tickets.

From the perspective of the outside world, the whole thing sounds a little ridiculous. But Karen Murtagh, Director of Prisoners’ Legal Services New York, a nonprofit that provides legal support to prisoners in the state, says these hearings are dead serious.

“It’s not just for the year or the two or the three years,” Murtagh says, “that you’re put in solitary you don’t have packages, you can’t call home, no commissary and lose good time. Which depending on your sentence requires that you spend longer in prison.”

And it gets even worse.

“Not having a lawyer, you’re your own advocate. You do the best you can possibly do, but you’re going to run into bias, you’re going to run into some prejudices, because there’s no presumption of innocence in prison disciplinary hearings. You’re presumed guilty there.”
— Derrick Hamilton

“The other piece of that is,” Murtagh continues, “it goes on your permanent record, so when you go before the parole board to be considered for parole, they look at this decision and they most often deny you parole based upon your disciplinary record.”

And you’re having to defend yourself against all these consequences without the help of an attorney.

“Not having a lawyer, you’re your own advocate,” said Hamilton. “You do the best you can possibly do, but you’re going to run into bias, you’re going to run into some prejudices, because there’s no presumption of innocence in prison disciplinary hearings. You’re presumed guilty there.”

Tad Levac, a lieutenant in New York State Corrections, says he’s overseen between 500 and 1000 hearings since 2008 and he says the system is designed to keep everybody—inmates, corrections people, and civilians safe. But that doesn’t mean the hearing system isn’t fair, he said.

“It’s important that I keep an open mind,” Levac says of the hearings. “And I’m fair to both staff and inmate, because if you’re not, to me the system will implode. The position is supposed to be fair and balanced.”

But it is easy to see it from Hamilton’s perspective. For starters, he was sitting, handcuffed, in a cage, while the hearing officer, Jim Kennedy, sat at a desk outside the cage. And although the hearing officer is forbidden from having any direct involvement in the case, officers often know each other. And Hamilton and others told me the officers often stick up for each other.

There is also, of course, an inherent power dynamic between the inmate and the officer. And many times, the officer has more education. But in any case, the burden of proof for the state is also quite low.

“If a lawyer was in the room, they would call the officer, they would ask for log books, they might call other witnesses that were on the tier. And our clients don’t necessarily know how to do that.”
— Karen Murtagh

“The way that’s been interpreted by the court,” says Karen Murtagh, the prisoners rights lawyer, “is that if a corrections officer writes a report and says you did this—you disobeyed a direct order, that is substantial evidence.”

That’s it. The officer doesn’t even have to come testify.

“If a lawyer was in the room,” Murtagh says, “they would call the officer, they would ask for log books, they might call other witnesses that were on the tier. And our clients don’t necessarily know how to do that.”

What they need to do is create a record, because otherwise, they can’t appeal the case to the state corrections department, or, if that fails, to the state court.

In fact, much of Derrick Hamilton’s hearing is him making objections of what to have on the record, objections about an employee assistant who didn’t get him documents he needed, objections about a doctor who didn’t testify, and on and on. The rest of the hearing, which lasted about 90 minutes over the course of several days, is an odd mix of the bureaucratic—seemingly endless minutes, recorded on hissy audio tape—of the hearing officer reading forms for the record and lots of personal details about Hamilton’s medical conditions.

The hearings are closed to the public, and lots of inmates don’t bother to fight them for a lot of reasons.

Murtagh says a quick look at the numbers suggests they’re unfairly skewed against the inmates.

In 2014, inmates appealed just 15 percent of all disciplinary hearings results. Less than a quarter of those appeals succeeded.

Murtagh says, her office can take on only a small number of the appeals prisoners send them. In 2013 and 2014, she and her colleagues reviewed just under 500 cases. They won two-thirds of those they appealed.

“I think there’s no question it’s stacked against the prisoner. The question is how heavily.”
— Margo Schlanger

California couldn’t provide numbers on disciplinary hearings and appeals, but a 2010 investigation by The Sacramento Bee found the process skewed heavily in favor of prison officials there, too: “Not only are nearly all prisoners charged with rule violations ultimately found guilty, they usually lose their appeals,” the article in the Bee stated.

Margo Schlanger, who teaches prison law at the University of Michigan, says it starts with the problem of not having an attorney to represent you. “You know, they say about attorneys that a lawyer who represents himself has a fool for a client,” Schlanger says. “And that’s if you’re already a lawyer. So I think you’re always better off having someone else represent you in some kind of contentious hearing type situation.”

But Schlanger points out that there are all kinds of situations—whether a disciplinary hearing at a university or in child custody cases—where people don’t have a right to an attorney.

There’s also the cost. Most prisoners can’t afford an attorney. So would the state pay for one? Or would only prisoners who could pay, get them?

“I think there’s no question it’s stacked against the prisoner,” Schlanger says. “The question is how heavily. And that’s a very hard one to answer.”

As for Derrick Hamilton, the hearing officer eventually dropped the charges for urinating in the soda can, since the rule was against urinating on the floor or throwing urine, and nobody had even accused him of that. But he was convicted of refusing to take a drug test.

The punishment: a year in solitary confinement. A year of no package privileges, a year without phone privileges, a year without commissary privileges.

Hamilton says he appealed it and got a rehearing where most of the charges were overturned. But by that point, he’d already served most of the time.

POSTSCRIPT:
Derrick Hamilton spent 20 years in New York State Prison, about half of that in solitary confinement. He was released in 2011 and in early 2014, he was exonerated.

He now lives in New Jersey with his wife and daughter. He works in a law office in New York, helping others who have been wrongfully convicted.

Part Two: SCOTUS – But I Didn’t Mean To

By Lawrence Lanahan

The U.S. Supreme Court had a huge summer with verdicts legalizing same sex marriage and upholding the the Affordable Care Act. But, in a less-publicized decision, the court debated the idea of disparate impact. Disparate impact sounds wonky — but it’s basically the concept that a state or federal policy can still be discriminatory, even if government agencies and officials say they didn’t mean it to be discriminatory.

The civil rights gains of the 1960s outlawed discrimination by race — discrimination that often had government approval or even participation. Yet, in 2015, housing in cities like Baltimore is still segregated, and opportunities in poor black neighborhoods remain severely limited.

Columbia University law professor Olati Johnson says governments still contribute to racial inequality–just in a more innocuous way. Take, for example, New Orleans after Hurricane Katrina.

“…a lot of the people who were displaced were African-Americans who had lived in New Orleans, and people were looking for replacement housing,” said Johnson.

After Katrina, some parishes outside New Orleans adopted new zoning ordinances, like bans on multifamily housing. “So you couldn’t build apartment buildings,” said Johnson.

The ordinances didn’t tell any particular group of people, “You can’t live here.”

“But,” said Johnson, “they have an effect of limiting housing to the people who already lived in these predominantly white parishes and excluding African-Americans.”

Local officials often say these policies have nothing to do with race.

“They might justify them on arguments such as congestion, or to preserve a certain kind of neighborhood character…and sometimes, those may be the reasons,” Johnson continued.

It’s the big question when it comes to twenty-first century racial inequality: Is there a way to hold decision makers accountable when their policies have the effect of harming racial minorities, even if you can’t prove discriminatory intent? In other words, if a government official says, “But…I didn’t mean to!”, what can you do besides walk away muttering, “Yeah, but you did”?

The law had never been perfectly clear on that question. Until, that is, a Supreme Court decision last month. A nonprofit in Texas argued that the state’s housing agency was rejecting too many tax credits for low-income housing in Dallas’s white suburbs, and instead crowding low-income developments into black and Latino neighborhoods.

The case wasn’t about whether Texas meant to discriminate. The plaintiffs just said the agency’s way of doing things had an unjustified effect on blacks and Latinos.

The Fair Housing Act of 1968 outlawed discrimination by race in the sale and rental of housing. But could you use it in court based only on the effect that seemingly neutral policies had on African-Americans? Appeals courts had said yes, but the language was a little vague. Texas said the Fair Housing Act only covered discriminatory intent.

The Supreme Court disagreed with Texas. In June, they ruled that effects are covered—under certain conditions. One: prove the disparity and show how the policy caused it. Two: give the defendant a chance to justify the policy.

“The third step of the analysis…is that … the plaintiff can still prevail by showing that there is an alternative mechanism to further the same goals but that doesn’t have a discriminatory impact,” said Johnson.

For instance, if some local zoning board claims that new apartment buildings will cause traffic congestion, a plaintiff can suggest new traffic policies or fewer units per building.

Olati Johnson says that left on its own, the federal government will never provide full enforcement. What’s key, she says, is that citizens pay attention.

“A lot of the ways in which we’ve gotten progress on race, gender, and other kinds of inclusion issues is by having lawyers, people on the ground, people in states and localities who actually say, ‘I want this to be done in a different way.’”

So what about housing? Will it be done in a different way now? In his majority opinion, Supreme Court Justice Anthony Kennedy wrote that the Fair Housing Act of 1968 has, “a role in moving the Nation toward a more integrated society.” Pessimists may point out that this legal approach has been available for decades with little to show, and that all the Supreme Court did was not take it away. But for others, the Supreme Court decision could signal a changing tide and embolden people on the ground fighting for more inclusive housing policies. The question of further integration remains, but the path forward just may be a little clearer.

PRODUCTION NOTES:
No Lawyers Allowed was reported by Alisa Roth and edited by Ben Adair, with funding from the Fund for Investigative Journalism and The Proteus Fund. Life of the Law’s Senior Producer, Kaitlin Prest, produced the sound design. Ashley Cleek is our Managing Editor. Simone Seiver and Kirsten Jusewicz-Haidle handled post-production. Part Two was reported by Lawrence Lanahan and edited by Kirsten Jusewicz-Haidle.

Our scholar advisor on this story was Heather Ann Thompson. Dr. Thompson’s new book, Blood in the Water: The Attica Uprising of 1971 and its Legacy will soon be published by Pantheon Books.