Time Served, Then Served Some More

It was my first case in the hinterlands of Kings County, a foreign land known to the locals as Brooklyn. A deal was cut to plead out for a sentence of time served, which my client happily accepted. After the judge announced sentence, the court officer was told to “take charge,” which in court lingo means to physically seize the defendant and put him back in the pens.

I immediately got between the court officer and my guy, blocking him from grabbing my client’s upper arm and leading him out of the courtroom. “He got time served,” I said loudly. “He’s walking out with me.”

The judge then explained that they did things differently in the hinterlands than they did in the Big City of Manhattan. Here, he informed me, a defendant had to be “processed out” by corrections before he could be released, but the judge assured me he would be out “today.”

Today? That could mean hours that my client would be held, dining on a slice of moldy American cheese on Wonderbread, when he was supposed to be free. He was ordered to be free, as he was sentenced to time served, which meant he already served his time. It was done.

I was livid. I briefly considered going ballistic about this, but bit my tongue, realizing that if this was the way they did it in Kings County, my throwing a fit wasn’t going to change it, bureaucracies being what they are, and I would at best prolong his detention and at worst join him.

Instead, I waited outside for a few hours to make sure my guy walked out. He eventually did, and I took him to a restaurant for a decent meal. I felt I failed him, as he spent those hours in custody after I told him his sentence would be time served. It may only have been a few extra hours, but it was his hours, his life, and not the state’s to take away from him because it had to “process him out.”

Time served in Louisiana, on the other hand, raises a problem magnitudes worse than anything Brooklyn could do. Johnny Traweek got time served.

The gamble had paid off.

In the hours afterward, Traweek said, he was on “pins and needles,” waiting to hear a deputy call his name to be processed out of the Orleans Justice Center jail. The first thing he planned to do, he said, was to head to the Moonwalk along the Mississippi River.

But no one called his name, not that day or the next.

Traweek asked the deputies why he was still locked up. “Man, check my record,” he’d tell them.

But Traweek didn’t get answers. It didn’t make sense. He had served his time. The judge had said so. It was all in the court record. Why was he still in jail?

Traweek spent seven days in custody beyond “time served. He was lucky it wasn’t more.

Traweek’s case, and others like his, hinge on a single legal question and a recurring problem in Louisiana: does the sheriff’s office or the Department of Corrections have the right to keep someone imprisoned past their scheduled release date for any reason, and if so, how long?

The federal 5th Circuit Court of Appeals in 2011 ruled that it’s “clearly established law that a prison official must ensure an inmate’s timely release from prison” once the sentence has expired. That “timely release” has been defined as less than 48 hours.

There are different ways of calculating a sentence under Louisiana law, apparently, and there is a bureaucratic battle between local and state officials about whose job it is to deal with it, and deal with compliance by actually releasing the inmate. You can have all the law you want, but somebody has to care enough to turn the jail house key and open the door.

But the Circuit held that “timely release” is less than 48 hours? There’s no excuse for “timely” release being more than 48 seconds, first because the life in question doesn’t belong to the state, and the state has no authority to squander that person’s life on whatever bureaucratic nonsense makes its job easier. You want to jail ’em? Then figure out how to release them, on time, immediately. It’s hard? There’s paper work? Math is hard? That’s not the inmates problem. Figure it out.

But even the excuses are ridiculous in this age of, wait for it, computers. It’s one thing to argue that it takes time for the pony express to bring the paper to the prison, but we’re beyond that. We have the technology to both ascertain the sentence to the split second, and to effectuate whatever nonsense they call “processing” instantaneously. And then, the only delay is getting a prison guard to call the inmates name, hand him his possessions and a bus ticket, and walk him to the front gate.

That jails and prisons care little about the actual lives of inmates is no surprise, as they dehumanize people to corral them like cattle in the first place. They’re not people. They’re inmates. Just bodies and numbers, as they do the count to make sure they haven’t lost one today.

But as wrong as that may be, that courts acquiesce to this treatment rather than buck the prison bureaucracy is inexplicable. If the judge says “time served,” why would she find it acceptable to be ignored by some bean counter in a back office, or a screw walking through a cellblock?

It’s bad enough that the machine refuses to recognize that each person awaiting release is a human being, but that judges are such cowards that they would let the machine take precedence over their sentence is pathetic. Whether it’s 48 hours or 48 minutes, or 48 days. Or do the judges care no more about the lives of the inmates than anyone else?

21 thoughts on “Time Served, Then Served Some More

  1. REvers

    I used to bitch about that. Mostly, the judges would look at me with that blank look they get when you mention the Constitution.

    I did once convince a judge to order the cuffs and leg chains be removed. The deputy was not happy with me.

  2. Robert K Trobich

    This happens here on a not infrequent basis, unfortunately. Even after an acquittal, if your client is in custody, they are taken back to the jail to be “processed out”. There’s been instances of people being acquitted on a Friday and the “paperwork not catching up” until Monday.

      1. Robert K Trobich

        Yep. Even if things go smoothly, a legally innocent person will still spend several hours in custody.

  3. Kathleen Casey

    You did a mitzvah for your client. Some lawyers wouldn’t think of that.

    I read a make-work law enforcement employee union tactic in the phrase “the right to keep someone imprisoned.” Even Louisiana has unions. Why antagonize them? Unions = judicial endorsements, campaign contributions, and votes.

    Here in New York a defendant who is otherwise free to leave but is subject to an order of protection is required to stay in the courtroom until the order is “processed.” The clerk adds the names, addresses, etc. on the blanks, and the check marks on the lists of conditions, etc., the judge signs, and the deputy serves on the defendant, who signs acknowledging service, etc. No one including the judge can go home until it’s done. It’s paper processing to protect the “victim” and that makes it a priority.

    A form ordering time served can be done in the courtroom too, in less time. No one thought of that.

    1. SHG Post author

      If my client is supposed to walk out with me, I don’t leave until he does. It’s a thing with me, and I’ve gotten my butt whupped by a judge or two for being such a stickler about it.

  4. JMK

    Do you suppose that Mr. Traweek had the privilege of paying jail rent for those extra seven days? That’s a nice incentive for the sheriff to “not have time” to handle his release…

  5. Jardinero1

    Very likely the jail clerks get their training from those at the DMV with federal postal clerks providing oversight.

    1. Eddie S.

      The clerks I’ve dealt with at the DMV and the post office in my area are pretty reasonable. The problems I’ve seen are computer related or are management level.

  6. Turn Key

    The jurisdiction I work in (I’m a turn key, not a lawyer) battles with judges for them to submit actionable orders to release inmates. They do a piss poor job of entering the journals, so our sentencing clerks have to beg them to update (or correct) them, resulting in delays. Not acceptable, but hizzoner doesn’t take kindly to a low-level bureaucrat asking for a proper journal.

    1. SHG Post author

      While I can’t speak to your particular jurisdiction, forms are generally prepared by court clerks and signed off by judges. At the time of sentence, the judge signs a committment (your term may differ) and from there it’s left to the machine to input, transmit and execute. What’s hard about writing “time served” or “life plus cancer” and signing the form? It’s unclear what more they need to do, and if it’s that tricky (and done by the judge, not the clerk), then the form needs to be simplified to avoid a “proper” journal entry.

      That said, if the judges are too lazy to get it right, and I don’t doubt what you say, then that’s an entirely different problem that is more serious and broader than making a proper journal entry.

  7. Eddie S.

    SMH I don’t think the problem is as clear as you make it out to be. If the judge imposes time served and the practice in the county is time served plus processing time (assuming that time is reasonable) then that’s what the judge is really saying. He can say I sentence you to time served plus reasonable processing time, but what’s the point of that if it’s already the practice in the county?

    1. SHG Post author

      Maybe if you ask why “reasonable processing time” has anything to do with sentence, it would allow you to think of it from the other side. These are people, not cattle, being “processed.” People aren’t sentenced for the sake of making “reasonable processing time” more important than their freedom. This is why no one wants clerks to rule the world, because they would elevate their need for “reasonable processing time” over people’s right to be free.

  8. Newdist

    Why is “time served” even a thing? If Bob and Tom committed the same crime, and Bob’s been locked up for 95 days, while Tom’s been locked up for 130 days, sentencing them both to time served is unfair to Tom.

    1. SHG Post author

      Time served either means that whatever time has already been served is adequate, or that the judge, knowing the specific amount of time an individual deft has served, decides that’s the proper sentence. So for Bob, 95 days is the proper sentence and for Tom, 130 days is proper.

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