Heinous Crimes Procedure – Fallon Seitz

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I met two teenagers on remand. They were charged jointly along with two other adults for aggravated robbery. The four allegedly broke a window and stole $400 of alcohol. All four pled not guilty. The teenagers had recently found out the adults received sentences of 15 years, which is not the type of news you would want to hear after two years in an overcrowded prison. And by overcrowded, I mean they both sleep sitting upright because there is no room to lay down and both have contracted contagious skin infections.

Those accused of heinous crimes (e.g. aggravated robbery, murder and trafficking [including possession of >0.5 grams of marijuana]) may spend two years or more in jail on remand before they are found guilty or acquitted. In the best-case scenario, the accused will remain in custody over a month before entering a plea.

Police stations

The accused can be held in custody and interrogated at the police station for up to two weeks, as heinous crimes are not bailable. Sometimes police delay arraignment by shuffling accused offenders to other police stations, violating the accused’s right to see a magistrate within a reasonable time. The most egregious example of this shuffle has resulted in two months of the accused not seeing a magistrate.

Court process

The court proceedings for heinous crimes occur in the following order:

Subordinate court

  1. The accused’s case is called, and the court asks for the juvenile’s parents. If the parents are not present, most magistrates adjourn the matter for—at most—two weeks. During this time, the court may issue a removal warrant, ordering the arresting officer, the juvenile and UP Zambia to trace the parents before the next court date.
    • If the juvenile’s family cannot be traced (e.g. he lives by himself), the court dispenses with the requirement of the guardian’s presence, and the probation officer from the social welfare office acts as a surrogate guardian.
  1. Once the parents or guardians are present, the court will record their age, occupation, physical address, contact information and relation to the juvenile. With the parents or guardians present, the court confirms the juvenile’s age, occupation, and residential address. Furthermore, the court reads and explains to the juvenile their alleged offense.
    • Juveniles accused of heinous crimes do not plea at the subordinate court, because the subordinate court has no jurisdiction to try heinous crimes. The juvenile and their guardians merely appear for the charge to be read and explained. The court will keep explaining and simplifying the explanation of the charge to the juvenile until they understand the charge.
  1. The Director of Public Prosecutions (or DPP) oversees the prosecution of all criminal matters and evaluates the available evidence to determine whether a trial is warranted. If the evidence warrants a trial, the DPP issues a certificate of committal to the High Court. This certificate alerts the High Court of the upcoming trial. In most cases, however, the subordinate court grants the DPP’s motions of continuances, and the case lingers in subordinate court for months.
    • Before a certificate of committal has been issued, the magistrate—sua sponte or by a motion of the accused—can conduct a preliminary inquiry. After conducting this inquiry, the magistrate gives their opinion of the evidence produced on the record and can discharge the case. Even if a juvenile is discharged pursuant to the inquiry, the DPP can later re-arrest and prosecute the juvenile following the DPP’s evaluation of the evidence. The DPP can terminate the inquiry before it is completed by:
      1. Determining no probable cause exists and entering a nolle prosequi that discharges the accused.
      2. Determining probable cause exists and issuing a certificate of committal to the High Court.
  1. When a certificate of committal has been issued by the DPP the accused must wait for the National Prosecution Authority (NPA) to add the case to the High Court docket. The NPA determines the order in which cases are tried, and the NPA can several months to cause list a juvenile’s case to the High Court docket. The Judge in charge allocates the cause listed cases to other High Court judges.
    • With misdemeanors (i.e. non-heinous crimes) the cause-list wait time for subordinate court appellants is frequently lengthened by at least two months just for a file to be created, following a conviction at the subordinate court.

High court

  1. If the accused cannot afford an attorney, the state accords one to them through the Legal Aid Board. UP Zambia has a memorandum of understanding with the Legal Aid Board to assist with unrepresented juveniles in Lusaka. This MOU was borne out of necessity as the Legal Aid Board is severely backlogged, like some public defender’s offices in America.
      • Current Legal Aid Board legislation caps the number attorneys, which can only be increased by future legislation.
      • The PLEED program has successfully lobbied to introduce legislation that grants paralegals more powers to alleviate the Legal Aid Board.
  1. High Court judges travel circuits, sitting in different districts throughout the year. Therefore, cases allocated to judges can only be heard when that judge’s criminal session opens in the designated district. The unavailability of a designated High Court judge creates a backlog of cases, as criminal matters can only be heard at specific intervals.
  1. When a case has been cause-listed and a judge allocated, the judge’s clerk then provides court dates. At the first hearing in the High Court, the accused can formally plea. In the swiftest cases, the accused pleads within a month or two. In other cases, the accused waits over a year to finally plea.
  1. Trial can result in numerous delays. In the past, High Court judges have simply forgotten about a case due to their burdensome caseload. UP Zambia, reminds the court of cases that have gone cold as the accused’s file may go to the bottom of the pile.
  1. Once the trial concludes, the accused will wait for judgment. If found guilty, the court orders the juvenile to offer mitigating factors that will be considered for sentencing. Lastly, a juvenile’s sentence cannot be delivered without a social welfare report, which requires contact with the juvenile’s parents, guardian or in extraordinary circumstances, the report of the probation officer.

OUTCOMES

“Reform” School

After spending years in remand, convicted juveniles are often sentenced to a reformatory, approved or “prove” schools. These sentences are not reduced for time already served on remand. The sentence begins when the juvenile arrives at the prove school, which can occur months after judgment. Sometimes, the prisons cannot afford the petrol to transport the juveniles. In some instances, the juvenile is convicted and transported to a prove school in 5 months. In other cases, the accused is on remand for years as the proceedings are delayed ad infinitum.

Absolute Discharge

UP Zambia has successfully advocated for some convicted juveniles to receive an absolute discharge at sentencing, persuading the judge to consider the time they were on remand.

Counseling Orders

Probation orders are another favorable alternative. This conditional release requires the juvenile to regularly attend a counseling program, and this sentence is typically reserved for first-time, juvenile offenders.

The teenagers’ best-case scenario is absolute discharge, where the court recognizes their time-served as sufficient punishment. It’s not unprecedented, but it’s unlikely.

The teenagers’ most likely sentence is “reform” school, which would not recognize their time served in prison. The reform schools somehow negatively impact the juvenile’s demeanors worse than the overcrowded prisons. For example, one of the reform schools—Katamboro—implements a practice where more tenured juveniles are empowered to whip and pummel new arrivals into solemnity. Another reform school—Nakambala—has no fences and allows the community, notorious for drug abuse, to freely roam around the school grounds. At least you are serving your time.

The teenagers’ mood was not improved by our optimism, so I gave them my lunch, a couple of KIND bars. They walked away without saying much, but I hoped my group provided a brief respite to their despair. They were certain their fate would be fifteen more years, and they weren’t excited about spending a year in Katamboro—the juveniles have heard the stories of the disciplinary regime.

It will take time and people, like those in UP Zambia, to encourage the country to improve correctional intervention.

By BLAdmin

About This Blog

Information from Professor Brian Serr and his students supporting the mission of Undikumbukire Project Zambia.

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