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.

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