Michael Avenatti should not be in solitary confinement

Imagine being held by yourself in a small, freezing cold cell 24 hours a day. Not allowed to go outside. Not allowed to make a phone call. Not allowed to go to the bathroom without being watched. Not allowed to shave. Not allowed to visit with a family member. Shivering and alone, day after day.

This is bad enough for a hardened convicted criminal who cannot safely be housed with others. But imagine being held in these conditions when you have not been convicted of any crime. And when the only crime of which you have been accused is a non-violent financial crime.

This is no crazy, off-the-wall hypothetical. It is a strategy too often used against accused first-time non-violent offenders in an attempt to crush them and coerce them into pleading guilty.

This is what is happening right now to Michael Avenatti.

And it is wrong.

Like him or loathe him, he is presumed innocent until proven guilty, under our justice system. He has not been convicted of any crime, and is not charged with any violent offenses. He should not be held like a dangerous animal.

There are important reasons to do away with solitary confinement altogether. Here are three of them: 

1. It is inhumane. Study after study shows that solitary confinement is akin to torture. Many reports demonstrate that such confinement leads to insanity. And it’s no wonder that the suicide rates in federal prison are going up as we imprison more and more inmates in solitary confinement. We are literally torturing people who have not been convicted of any crime and aren’t even accused of doing anything violent. Sadly, these individuals sometimes believe their only way out is suicide. Suicide rates have increased from 4.7 per 100,000 federal inmates in 2010 to 8.1 in 2016 to 14.7 in 2018.
2. It makes preparing for trial impossible.There’s been lots of talk about the problems with the vanishing criminal trial. But prosecutors (and some judges) are okay with it. They use tactics like pretrial detention to discourage trials. Add to that solitary confinement, and trial becomes utterly undoable. Avenatti’s lawyers explain the issue in this letter, which sets forth the incredible difficulty they are having in reviewing the boxes and boxes of documents that need to be reviewed with their client. Each has to be handed to a guard so that the guard can then hand them to Avenatti, who is on the other side of a glass partition. This is not practical, especially in a white-collar case involving documents.
3. It doesn’t work and is a waste of money. Many times, including in Avenatti’s case, the prison system attempts to justify solitary with the “it’s-for-their-own-protection” defense. That’s absurd. One need look no further than the case of Jeffrey Epstein, who attempted unsuccessfully and then successfully to commit suicide while in solitary. Overworked guards were supposed to be monitoring him, but weren’t. And there were no cellmates to sound the alarm. Prison wardens approve tactics that break down an individual — bad food, cold temperatures, fewer phone calls, less yard time, it’s all good! In Avenatti’s case, he violated his bond, but was only found to be an “economic danger” to the community. He was not tampering with witnesses or obstructing justice. And even if some defendant was accused of this, being jailed in general population is almost always sufficient.

Michael Avenatti isn’t El Chapo. But he’s being “housed” in El Chapo’s cell.

El Chapo was the biggest drug dealer of our time. He killed witnesses and competitors. And he escaped from prisons.

On the other hand, prosecutors allege that Avenatti violated his bond by trying to avoid creditors by using money orders. He’s no El Chapo.

Let’s have a debate about whether El Chapo should have been held in solitary confinement (I say he should not have been), but there can be no serious debate about Avenatti. Let the man prepare for trial in general population.

This is one of the many reasons that our criminal justice system needs serious reform. Abolishing solitary confinement for pretrial defendants is one small but important step.

David Oscar Markus is criminal defense attorney at Markus/Moss in Miami. He is a magna cum laude graduate of Harvard Law School. He tries criminal cases and argues criminal appeals throughout the country. Follow him on Twitter @domarkus.