Time for another lawyer talk. Q and A.

What does that mean?

Well, that means we're taking user listener questions.

That means that those who have been studious enough to go to

lawyertalkpodcast.com and submit a question, well, they get an answer, sir.

Now, I can't promise I get you an answer immediately.

I can't promise that I'm always on the

microphone down here at the studio at Channel Five.

One one. But I do my best.

And I know there's been a little bit of a law here, but that's only because I got

this other thing called a job and it keeps me busy.

But it doesn't mean I've forgotten about you.

And that's why we're here.

So without further Ado, we've got a question from Jeff.

It says, Hi, Steve. Do you court's ever taken into

consideration of poor quality or dangerous conditions of prisons when sentencing?

There was a case last year in Montana when a judge did not go for a custodial

sentence because of the bad experience and poor reputation of the county jail.

Is this an option or is this an option open for Ohio judges?

Poor prison conditions are the next area that BLM Black Lives Matter.

I think he means are set to be focusing on

as part of the defund the police, aka don't send people to dangerous jails.

And he says, by the way, I love the Blitz segment each week.

And obviously, he's a listener of The

Blitz 997, where I do some Q and A there with The Blitz Nation and Lopez and Randy.

But anyway, let's get to the question.

Do courts ever take into consideration the

poor quality of dangerous conditions of prisons when sentencing?

Well, prison sucks. Jail sucks.

It's not meant to be a real happy, fun place.

Now, that said, there is a limit.

There's a line that gets drawn where jails

are just flat out dangerous and they don't meet standards.

We do have the 8th Amendment in the United States that prevents cruel and unusual

punishment, and maybe that's where this would be raised.

And my father, John Palmer, Professor John Palmer, once wrote a book on

constitutional rights of prisoners on what the Civil Rights Act, the Section 19 three

requires of the government with respect to prisons.

It's a huge body of law.

I'm not going to go into it in the context of this.

But back to the question.

I think maybe the best way to answer this is a lot of courts aren't going to care.

They're going to say, well, jails are supposed to suck.

But then in the last couple of years, we've had this thing called covet, and it

changed the landscape of that a little bit.

It changed the situation a little bit.

We had a lot of judges, even in federal court on something called

compassionate release who were releasing prisoners or maybe not sending people to

prison because of the risks and dangers of covet.

So I've had clients who were uniquely

susceptible to covet issues that we were arguing for, either no prison or minimal

prison or house arrest or some alternative to prison because of the safety issues.

Now I get it. That's not exactly the question.

Our prison is just so far and dangerous.

Maybe the answer to that question is,

well, maybe the next is the best place to get this.

Is the option open for Ohio judges?

I think the option is open for all judges.

Judges can consider this.

Judges can consider this along with a

multitude of other things and other factors in sentencing.

So generally they're going to look at big picture categories.

What is the risk of recidivism?

In other words, is this person likely to reoffend and therefore need prison?

What's the danger to society if the person is not sent to jail or prison?

Generally speaking, is it a good guy?

What's his character, what's the offense characteristics on top of that?

And the judge throws all that into the

milkshake, hits the blender button and comes out with a sentence

in that could easily be a consideration about the dangers of prison.

And there is an administrative body in Ohio, the Department of Rehabilitation and

Correction, and they have classification systems.

So the most dangerous people go to more secure places.

The least dangerous people go to less secure places.

The Federal Bureau of Prisons is far more advanced than this.

There are camps, and then there are these sort of high risk, high security prisons.

And depending on the crime, depending on the person, they plug in a bunch of

factors and come out with the right placement.

So all of that is already considered, I should say.

And if you are convicted in federal court

particularly, and it's a nonviolent paper crime, you're not going to go to the same

place, generally speaking, as all the super violent criminals will go.

So it'll be more safe.

Now, I don't know about the Montana case

that Jeff is asking about, but it wouldn't surprise me if you found a

judge that said, look, this prison is so inherently unsafe, I'm not doing it.

But it would surprise me if that happened

in a situation where somebody should have gone to prison anyway.

And I guess surprised not the right word.

But I would bet without reading the case that it was an offense that was on the

bubble, that didn't necessarily demand a prison sentence either by societal

standards or legal standards of the judge's own standards.

And it was easier for the judge to say that then as far as what the political

movements, Black Lives Matter, anybody else is going to say or defunding the

police with respect to the dangerous jails?

I can't comment on that.

It wouldn't surprise me.

There's always been those attacks, and I think those attacks are good.

Not that I agree with them, I guess,

in substance, but I think a constant challenge of what's going on, constant

debate over how we handle our criminal justice system.

A constant push from both sides really is what ultimately leads to the best outcome.

There is no perfect situation in our criminal justice system.

I can say that I've lived it.

I've been on the front lines now for over

26 years and I can tell you it is not always perfect.

Far from it.

People get convicted when they shouldn't.

People walk away when they're innocent.

But I think it's still the best system

that we have and it enables us on the criminal defense side to defend ourselves.

We have rights, we get to use them.

And I think people on we'll call it the

conservative or the right side of the political aisle often will say we don't

want these prisoners or these criminals have way too many rights.

All I can say to that is be careful

because when the devil turns back on you and you've advocated to get rid of the

rights, well, you're not going to have them for yourself either.

So the rights are there for a reason.

They're there to protect your freedom when you didn't do anything wrong.

And if you're not willing to give that to

somebody who did do something wrong, well, then don't expect it when it comes to you.

So I know that's not a dangerous prison

response, but I think I've linked it up good enough anyway to sum it up.

Judges can and I think often do take into consideration

the conditions at jails in prisons, so I hope that answers the question.

Jeff, great question.

Thanks for listening week in and week out.

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