Delphi Side Stories: Safekeeping

Not only is the order itself bizarre, Indiana's reviewing courts appear willfully ignorant to basic principles of due process where "safekeeping" is concerned.

Of all the shocking stories surrounding the investigation and prosecution of Richard Allen for the murders of Abigail Williams and Liberty German, holding him in solitary confinement in a maximum security prison for thirteen months as an unconvicted pretrial detainee is among the most horrifying. I decided to take a look at this process and how it was ever allowed to reach this point.

First, the order

Barely a week after Richard Allen’s arrest and the same day that he recused himself from any proceedings in the case, Judge Benjamin Diener signed the order that committed Richard Allen to the custody of the Department of Corrections for “safekeeping” pending trial. Apparently uninterested in the long-standing First Amendment case law guaranteeing the public the right to attend criminal trials and Indiana’s own rules on public access to court records, the order characterizes public interest in the case as “toxic and harmful,” “bloodlust,” and “disruptive.” He blamed the public as the source of the threat to Richard Allen’s safety that required him to be brought to court in protective clothing. Missing from this reasoning? Any explanation about how the public would reach Richard Allen in a secure county jail to harm him.

The request for a safekeeping order fares little better as a source of facts establishing a threat to Richard Allen that only the Department of Corrections could manage. Then-Sheriff Tobe Leazenby simply cited his feelings and the high-profile nature of the case as justification for the order:

As you can see from the timing of these documents, the order was signed the day after the Sheriff requested it, without a hearing, and while Richard Allen was still unrepresented by counsel. This order set in motion the sequence of events that led to his extended solitary confinement, his decompensation, and the series of “confessions” he began to make five months into the ordeal.

How was this allowed to happen?

The legal basis

Indiana Code § 35-33-11-1 provides the legal justification for detaining an accused in the Department of Corrections before trial for “safekeeping”:

Note the standard: the court must find “imminent danger of serious bodily injury or death.” “Imminent” means that the danger is immediate or about to occur. Where the concept of imminence has received the most attention legally is in the definition of incitement, a category of unprotected speech recognized by the U.S. Supreme Court in Brandenburg v. Ohio, 395 U.S. 444 (1969). In this context, the imminence of a threat of lawless violence plays a crucial role in distinguishing speech that poses an immediate threat to public safety, and speech that advocates for change in fiery terms. Under this standard, speech that merely hypothesizes about lawless activity or even encourages lawless activity at some future time does not meet the standard of “imminence” necessary to overcome First Amendment protections. See Hess v. Indiana, 414 U.S. 105 (1973).

What immediate threat did confinement in a local jail pose to Richard Allen’s safety? We don’t know, because neither Sheriff Leazenby nor Judge Diener identified one. Both eagerly pointed the finger at “public interest” - the same public interest that law enforcement cultivated for years to develop investigative leads in the case - but gave no explanations for why people making YouTube videos, even for profit, posed an imminent threat to Richard Allen’s safety inside a secure jail setting that limits contact with the public, or why supervision and monitoring in a jail setting would not be adequate to ensure Mr. Allen’s physical safety.

So, to recap where we’re at, the judge signed an order having a significant impact on Richard Allen’s liberty, on the same day that the judge claimed such significant conflicts of interest that neither he nor any other judge in Carroll or adjoining counties could preside over it, based on findings made without any hearing or adversarial testing and that appear on their face to be insufficient to satisfy the legal standard required by the statute to order safekeeping. Why was this allowed to happen?

Indiana appellate courts disregard basic due process principles

There is very little case law addressing the safekeeping statute and the process by which pretrial detainees are transferred to the Department of Corrections. But an Indiana Supreme Court case from 1987, which is cited with approval in subsequent decisions, the state’s highest court poo-pooed contentions that imposing a safekeeping order without a prior hearing was unlawful:

The Parr Court doesn’t even address the argument, turning immediately instead to a statute authorizing a post-transfer hearing as proof that a pre-transfer hearing is not required. But constitutions trump statutory enactments, and long-standing due process principles require prior notice and an opportunity to be heard before an individual can be deprived of fundamental or statutory rights.

In the landmark case on procedural due process, Mathews v. Eldridge, 324 U.S. 319 (1974), the U.S. Supreme Court developed a test that requires balancing of the nature of the individual interest affected, the risk of erroneous deprivation of the right, and the government’s interest in avoiding the cost and inconvenience of protective procedures. Thus, under these rules, the highest court has held that a tenured employee is entitled to a pre-termination hearing before being deprived of their property interest in a job, see Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985); a student is entitled to a hearing before a disciplinary suspension may be imposed, see Goss v. Lopez, 419 U.S. 565 (1975); and welfare benefits may not be terminated without a hearing affording at least some opportunity to challenge the case for termination, see Goldberg v. Kelly, 397 U.S. 254 (1970). Yet a legally innocent man facing pretrial confinement with convicted felons on the basis of statutorily-required findings supported by evidence sufficient to support them has no right to dispute the order before it is entered? This logic appears to me to be so deeply problematic that it speaks for itself why the Indiana Supreme Court chose to simply ignore the question rather than answering it on the merits.

A subsequent Indiana Supreme Court case considered the effect of pretrial detention in the Department of Corrections on the ability of the accused to meet with his attorney and meaningfully attend pretrial hearings. In that case, the court applied a “no harm, no foul” standard that requires the defendant to prove that his detention was ordered for the express purpose of making it harder for him to meet with his attorney, which will be impossible to meet without a whistleblower or a decisionmaker that is dumb enough to put such things in writing. Note also that the defendant’s own evidence about the effect his detention had on his ability to meet with his attorney is effectively considered not to even be evidence:

Under these precedents, it appears clear that Indiana’s highest courts have little concern for the effects of pretrial detention in the Department of Corrections on the rights and well-being of the accused, nor are they interested in requiring trial courts to justify their “safekeeping” decisions with actual evidence that the statute plainly requires. But federal courts can be an avenue for vindicating rights as well; why haven’t they intervened to require more oversight over pretrial detention?

Federal courts rely on their limited jurisdiction to deny relief to pretrial detainees

Unlike state courts, which have general jurisdiction over matters arising within the state, federal courts are courts of limited jurisdiction, meaning that their authority to hear and decide cases is constrained. This limitation derives from Article III of the U.S. Constitution, which enumerates the specific questions federal courts are authorized to consider:

For purposes of ordinary citizens seeking relief in the federal courts, the typical avenues are by presenting a federal question (“all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made …”) or by invoking diversity of citizenship (“to Controversies between . . . Citizens of different States”). These limitations present nearly insurmountable hurdles to vindicating rights established by State law - such as the standard for transferring a pretrial detainee to the Department of Corrections - in federal court.

In the only instance I was able to find where someone tried to raise similar concerns to those present here - being transferred for medical reasons despite the statute plainly stating that transfers are not authorized solely for medical reasons - the federal court concluded it lacked jurisdiction because an Indiana inmate and an Indiana county sheriff are citizens of the same state:

It remains theoretically possible for a pretrial detainee to challenge a transfer under due process grounds by invoking federal question jurisdiction. As a practical matter, claims challenging the constitutional validity of state statutes face obscure procedural hurdles as well as challenging legal standards that presume statutes are constitutional, making it unlikely for a claim to succeed without substantial legal assistance. This work is beyond the scope of practice and representation for appointed public defenders in a criminal case, meaning that only for the tiny minority of criminal defendants who can afford to hire a second attorney to litigate for them is there any realistic prospect of success in federal court.

What can be done?

Clearly, the courts are not a welcoming forum for challenges to pretrial detention. I see two avenues for action by the public to change this process so that no legally innocent person is treated the way Richard Allen was treated again:

1. Pressure and support advocacy organizations to get involved and litigate these issues on behalf of individuals who cannot afford to hire attorneys themselves. Groups like the American Civil Liberties Union frequently file lawsuits over prison conditions, inadequate defense systems, and the like. Unfortunately, because Richard Allen’s situation was so extraordinary - none of the corrections employees had ever seen a pretrial detainee with no prior criminal history held in long-term solitary confinement for safekeeping - it may be difficult to convince them that enough people are at risk of similar treatment to justify their intervention. But this doesn’t mean we shouldn’t try, given the magnitude of the harm faced by other defendants if the treatment of Richard Allen is allowed to go unchallenged.

2. Voice your concerns loudly and repeatedly to the legislature. The legislature adopted the safekeeping statute, and the legislature has both the power and the responsibility to change it to prevent its unjust application. There are many ways the statute could be amended to provide greater protection to pretrial detainees - requiring the appointment of counsel before an order is entered so the accused can meaningfully exercise the statutory right to deny transfers based solely on personal safety; providing for pre-transfer hearings, or, at a minimum, immediate accelerated review of transfer decisions; requiring specific facts be pleaded and proven substantiating the claim of an imminent threat to the detainee’s safety, are just a few that come immediately to mind. If the law is not working, it is the legislature’s job to find out why and fix the problem. They are more inclined to do their job if they are aware they may lose it if they don’t step up.

Nothing will ever undo the damage done to Richard Allen and his family by the ironic invocation of “safekeeping” procedures. But to understand how to change it, it’s critical to understand why the courts have failed to enforce it. While it’s too late for Richard Allen, it’s not too late for the next unpopular accused who falls into the clutches of a nervous Nellie sheriff and an unscrupulous judge who confuses his personal outrage with proof of imminent harm.