Story – Audited – Young women sentenced, handcuffed and jailed

Nobody wants to be audited, but the new crime audits make being audited by the IRS look like a walk in the park. Under the terms of the Criminal Accountability Act, citizens are randomly chosen, and every aspect of their life and past is thoroughly investigated. Large amounts of data are available to investigators at the Criminal Audit Division of the FBI. Bank records, security camera footage from locations and times the audited person was known to be at, and cellphone records and emails are accessible.

The letter informing the recipient that they have been audited is hand delivered. From that point they have two months to fill out and return what is called a ‘declaration’ and a ‘bid’. The declaration is a list of all criminal offenses that the audited person thinks that they have committed, together with as many details as they can remember. The bid is the suggestion that the audited person makes about what their punishment should be. At this point, they have no idea what the CAD knows about what they have done. They are told that they must record every single crime they can recall, but in practice this involves a guessing game about what the investigators will be likely to find. The more that the audited person reveals about their criminal offenses (especially ones unknown to the auditors) the more likely the CAD are likely to be lenient. One of the ways in which they can be lenient is to accept a low bid.

Obviously, the complexity of all this makes hiring an attorney necessary. At the moment, the system is relatively new, so even the most experienced attorneys are still trying to find the best ways to help their clients. What crimes should they declare? What should their bids be like? They want to try and secure the lowest possible sentence but bid too low and the CAD will seek a total sentence that tends towards the upper end of the sentencing rules. Ultimately a judge decides, but they have not yet rejected an accepted bid or deviated much from the recommended sentence requested by CAD after a rejected bid. If the CAD attribute any additional crimes to the defendant beyond what they have declared, they can challenge them, but it invalidates their bid which may otherwise be accepted by the CAD with a recommendation for an additional element based on the added offenses. Rejection of additional crimes usually results in a criminal trial on those charges. If the defendant has already admitted to enough criminal offenses to warrant it, CAD usually requests that they be held on remand ahead of the trial, and this is usually granted and does not count towards any final sentence. So the incentive is there to be as thorough and accepting as possible.

The law now imposes a duty on all citizens to report any crimes they have committed. This means that any crimes undeclared after the act was signed into law face tougher sentences.

Research showed that 98% of citizens committed crimes that were unknown to the authorities. The intention of the audit is to try to get people to avoid committing crimes even if there is a low chance of being caught in the act. Given the amount of time and resources required for audits, only a tiny proportion of people will ever be audited in this way, but the authorities hope that even that will be deterrent enough. If it is not, they are working on ways to automate most of the investigation process, and have publicly promised to increase the auditing rate in the future.

During the two month period, the investigators are also busy. Now that the audit is out in the open, they advance their investigation still further by questioning people who know the person being audited, or who might be able to offer evidence. The CAD can offer to remove someone’s name from the random audit selection database for fixed period to encourage them to cooperate, or threaten to create additional entries for them on the database to increase their chances of being audited if they are being obstructive.

Receiving notification of an audit is an awful shock for anyone. It can never feel like a good time for your life to be turned upside down, and it certainly didn’t feel like a good time for 26-year old Emma Norman. She had just started to be successful in her career, and was young free and single: enjoying single life, but ready to settle down when the right man came along. As a woman, she is at her peak, past the insecurities and artlessness of youth, her slim but womanly figure now filled out with curves, her eyes bright and her hair long.

She had no dark past but was no saint. She had not been a model student at school, and had her fair share of youthful mistakes and heartbreaks. Having left school at 16, and worked a series of dead-end jobs, she was finally getting somewhere. And now this. She was told she could speak to a state-appointed attorney for free, but her parents helped her to pay for a better one, a local man with a good (if not stellar) reputation. He had studied the new system through official documents and legal journals, but was completely inexperienced in the new system – he was working on the basis of his reading and his 20 years of legal experience.

He told Emma to make a list of everything she could think of that she had done wrong, however seemingly minor. She took some days off work, and went back as far as she could, checked old journals, old text messages, old emails. Her heart sank whenever she remembered something new. Or rather, something old. The final list, once she pulled it all together in a spreadsheet, looked ominously large. she emailed it to her attorney, and three days later met up with him at his office. He went through the document with her, asking her how she remembered each incident, and what evidence there might be of it – payments, camera footage, emails, text messages, witnesses. As the meeting went on, his copy of the spreadsheet gradually filled up with colour coded cells. He highlighted in red the cells of crimes that the CAD were sure to know about, in yellow the ones they might find out about, and in green the ones they wouldn’t. He asked Emma to come back in a few days to discuss the declaration.

Before their next meeting, he worked up a document listing all of the red highlighted crimes, and most of the yellow ones. When Emma arrived for their next meeting, he presented the draft declaration to her. To her dismay, a surprisingly high proportion of everything she had remembered remained. She thought that her attorney was mistaken, but as they went through it line-by-line, she accepted his logic. No cameras around? Witnesses. No witnesses? Cameras. Neither? Bank, email, or text records. He reassured her that however bad the blunt document looked, with several pages and entries in the ‘offense’ column like ARSON marking a time she and her friends set alight a trash can on some waste ground, and LARCENY for the two incidents of shoplifting she admitted to, they were not serious instances of these offenses, and she would gain credit for admitting them and the end bid could radically undercut the total sentences for all these offenses, as the CAD tended to want to minimize their workload by accepting bids accompanying comprehensive declarations.

So they agreed on the declaration and arranged to meet the next week to discuss the bid. In the meantime, her attorney talked to colleagues and tried to work out the details of other bids, but found it difficult to identify a pattern. In the end he went through the sentencing rules, took the lowest figure for each, made as many sentences as concurrent as he could hope to get away with and then reduced the total by 25%. It was reasonable guesswork, informed guesswork, but still guesswork.

Emma arrived at her attorney’s office nervous but hopeful. She was reassured by his body language when he started going through his procedure. After 2 minutes in which she became impatient – “I wanted to know what was going to happen to me, I’d been waiting long enough already” – he casually revealed that he recommended that their bid be for 8 months in a low security prison with weekly visits, 30 minutes of phone calls twice a week and no restraints to be worn within the prison.

She was aghast. “I thought, ‘8 months! I’m not spending that long in prison, and why’s he talking about visits, phone calls, not being restrained, I thought that was what happened anyway.” Her mind a whirl and her heart now beating twice as fast, Emma barely noticed the details of what her attorney said next, as he outlined how they would make the bid, and when she should turn herself in and what to expect. “I should have realized that every after the actual bid was just going to be white noise for her, I know that now,” he said. She didn’t wait for him to finish, interrupting in a halting way as she attempted to be firm as well as hold back the tears she could feel welling up, “I …am …not …going to prison …for 8 months. How could you suggest that?!” He attempted to explain why, but she wasn’t listening. She protested again, and he attempted to calm her by reassuring her that she didn’t have to decide today. He made a point of calling his secretary to arrange an appointment the following day, and handed Emma a file outlining the bid and the next stages of the process. He thought that if she slept on it, she would realize that this was the best deal she could get. She went away reluctantly, after trying and failing to persuade him to change the bid.

She had left the office disconsolate, and he expected her to return in a similar mood the following day, having accepted the inevitable. He was disappointed. She entered the office confident, and still resistant. He had to cancel the rest of the appointments that morning, as they discussed and argued the bid. Eventually they settled on a bid, that neither was happy with. She had wanted to avoid prison, but had now accepted that this could not be avoided. He was forced to go along with a bid that he thought was too low, but ultimately agreed to push for. The formal declaration and bid – of 3 months low security prison and 3 months curfew with electronic tag – was submitted to the CAD. They now both faced an anxious wait to see if it had been accepted. He expected that it would not be, that she had forced the bid too low and as a result would spend longer in prison than she would have done if she had accepted his advice.

As they learned when he opened the response from CAD in his office with Emma present, they had both been wrong, about the declaration as well as the bid. Even the attorney’s bid would have been too low, and the revised bid seemed like an insult. The response cited two instances of Emma using a cellphone with driving since the introduction of the Criminal Accountability Act and three of her exceeding the speed limit. They also revealed that witnesses had informed them that she had admitted downloading pirated music and movies, something that they could not prove but which had been noted by them.

“How was I supposed to remember that, I can’t even remember it now,” Emma complained, but knew it would be pointless challenging. Her attorney hesitated before informing her of the sentence they were proposing. “Er, Miss Norman, they want…you to serve. I’m very sorry, they want 19 months. And the conditions, I wasn’t expecting…” Emma interrupted: “19 months! How can they do that? And what conditions?” He gravely replied, “medium security, legs shackled when outside of your cell, handcuffed when outside the block.”

A silence then fell after this rapid exchange, before Emma meekly asked, “and is there nothing we can do about this?” She knew that she could challenge it, but that the CAD would win and she would spend even longer than 19 months in prison. There was still an atom of hope that her attorney might be able to provide a solution, but his facial expression soon removed that. Two days after this meeting, she formally signed the document accepting the charges and sentence recommended by the CAD, and reported to her assigned prison the day before the month-long deadline expired.

After panicking, the first thing that many people do when they receive a letter from the CAD is to search online for what happened to other people. And often they focus on stories like Emma’s, where undeclared offenses and low bids lead to lengthy stretches of time behind bars. As a result, they can often go too far in the other direction. According to Mike Jacobs, one of the more experienced attorneys in dealing with crime audits, this is a mistake that it is difficult to persuade clients to avoid. “Auditees are not like our regular clients,” he explained. “These are people that are mostly law-abiding citizens who have had nothing to do with the criminal justice system. But most people have probably done something illegal, so they’re scared, and that leads them into making bad judgements.” The problem is, the final decision on the bid is the client’s alone. “We have to take a different approach with them than our normal criminal clients. If they’ve found all kinds of cases where people have ended up get longer sentences because of bids that are too short, we have to introduce them to people who made a different kind of error.” Mike’s company uses people who have already gone through the auditing process to speak to new clients. “It can be very effective in getting people to moderate their positions, and take less notice of what they’ve seen on the internet. We also always stress that many of the horror stories they’ve seen come from people ignoring advice from their attorneys, or using inexperienced attorneys.”

It’s an approach that has earned praise from clients, and Mike is justly proud of it: “I can cite dozens of cases where it’s worked, there was one client who initially demanded that we list absolutely everything he had done wrong ever, and we had to really work hard to convince him that there was no way they would find out about a lot of it. Another one, she wanted to bid for about 12 months in prison for what was just a handful of auto offenses and smoking a bit of pot at college. In the end, she agreed to bid for a month and it was accepted.” Some clients wanted to try to increase the severity of their sentence to minimise the time spent incarcerated, something that Mike and his colleagues also try to steer away from. “We had this one client, Sarah, won’t tell you her surname, early 30s, young kid. It was the usual story. Someone with no real criminal history, but they’d some things wrong, and they got unlucky being audited. It can be quite heartbreaking, because these are good people, and for them six months in prison seems like the end of the world. So they look for outs. And once they’ve given up on avoiding prison entirely, they try and shorten it as much as possible. And they come into my office, and say, ‘I’ve read that some other people have shortened their sentences by bidding for higher intensity, I want to do that.’ And they give the impression they know what that involves, but they only want to spend two months away from their families, not six. OK. So it has been done, but we try and avoid it, for two reasons. One, two months in a higher security facility with more intense levels of punishment is way worse than six months in a low security prison. No question, no doubt. In low security, you’re mixing with other people like you who got caught up in a crime audit, or other low level offenders. It’s not nice, but, it’s prison, what do you expect. But when you go to higher levels you’ve got violent offenders who will make your life a misery and pose you a serious threat, and you’ve got additional punishments as part of the sentence that even hardened criminals find it hard to deal with.”

At first, Mark told us, few accept this advice. “They don’t want to really listen to it at this point, they’ve come in thinking they’ve got a way to shorten their sentence. So they tell me, a surprisingly high proportion, ‘I know it would be hard, but what about serving my sentence in the highest level, ultra? Then there’s no danger from the other prisoners.’ And that’s right. A lot of states have brought in ultra-security status over the last few years, and one feature of it is that inmates never come into contact with each other.” So how does he respond to this objection? “I tell them that the CAD are getting pushback from correctional facilities for accepting bids from low-level offenders to spend their sentences in ultra-status conditions, because it’s expensive and they see it as unnecessary. So they’re accepting it less and less. But more than that, I really have to emphasize how bad it would be for them, and that prisoners in ultra-security have been known to plead to spend twice as long in prison if they could move to super-max. It’s that awful. I show them a picture of one of my clients, not an auditee, but someone who robbed a liquor store when she was 18 and got moved up to ultra because of her bad behavior in prison. I ask them how old they think she is. Not one has guessed below 34. She’s 21. And she just looked normal for her age when she went in.”

Unfortunately, this did not always work, and that’s when Mark has to bring in one of his former auditees with first-hand experience of being a prisoner in ultra-status conditions. Now 27, Eva Becker was audited 18 months ago, and confessed to her attorney that she had been involved in producing false financial statements for a community college that she served on the board of and helped manage the finances. It was struggling, and Eva and other board members did what they thought was best to keep the college alive during difficult times, in the course of which they broke several laws. “I didn’t really think too much about the illegal things we were doing, until the audit. Then I just thought, shit. We’ve been submitting false figures to regulators, banks we’re lending from, this is not good. I told Mark everything and he was great, so professional,” Eva told us. She agreed to let us observe a discussion she had with one of Mark’s newer auditees, 23-year old Rachel Vance.

Eva started the meeting by asking Rachel about her audit, and why she wanted to pursue ultra-status in her bid. It was for the usual reasons – a busy life that she didn’t want to disrupt by spending too long in prison. Becker then established herself as someone who had been in the same position, and thought the same way: “I didn’t want to spend years in prison in my 20s, I wanted a short-cut, a way of ripping off the band-aid and getting on with my life.” But there was a price to pay, and she felt it from the moment that she turned herself in. “I’d been facing 3 or 4 years in prison, with a good bid and a good attorney like Mark. By going for ultra-status I managed to get 14 months. But it wasn’t worth it, to spend that long being treated the way I was. When I turned myself in, I was immediately grabbed by two guards. One of them forced my arms together behind my back, and the other one got a zip-tie and cinched my arms tightly together at the elbow, then repeated it at the wrist. They then took a gag from the desk, and put it in my mouth, pulled the straps tight til my eyes were bulging and locked it shut.”

At the mention of a gag, Rachel’s eyes widened and her mouth opened slightly, disbelieving. “When I say gag,” Eva continued, “I don’t mean one of those cutesy ones they have in these old movies, this was wide and it was long. They call them gags for a reason, because that’s what I was doing when they put it in.” But the process didn’t stop there. “They then got a hood, and placed it over my head. It was obviously made of polyester or something like that, and it must have been worn by at least a few other people that day, I could smell the sweat and the drool on it, it was disgusting. And so hot. I could barely see out of it, the material was so constricting it forced my eyelids almost completely shut. And this is all in the reception area. Then they march you through the doors like this, feeling sick, arms aching in an unnatural position.”

“Why do they do all that?” Rachel enquired. “I was ultra-status. It was created to deal with prisoners who were security risks, made trouble, took any opportunity they could to mess with or assault guards. Just because I was in there for non-violent crimes and didn’t pose any kind of danger didn’t matter to them. That’s the bargain I made.” Already Rachel was visibly blanching at this description of life as an ultra-status prisoner, but Eva wasn’t finished.

“They bustled me through to this room, it was brightly lit but that’s about all I could tell. They pushed me a couple of times until I stood where they wanted me to stand, then they barked at me to kick off my shoes, which I did. Once I’d done that, they kicked my legs apart, wider, wider, then when I barely thought I could stretch any wider, cuffed my ankles to a chain that must have been coming from the floor. Then came the strip search.”

Rachel interjected at this point, trying to unsuccessfully mask the involuntary gulp that thought of being strip searched caused by unconvincingly conveying her acceptance of the reality, “so they released your arms then, to do the strip search.” Eva shook her head, “not in ultra, honey, they don’t want your arms free. One of the guards just came over and cut my clothes off.” Rachel gasped, “CUT them off?!” Eva silently nodded. “They do it all the time, it’s done in 30 seconds. I didn’t realize before that though, came as quite a shock, luckily I was too paralyzed to react, they don’t like it when you resist that.”

With Mark looking on, Eva continued: “Now they gave me a full body search. One of the guards held me, lifted up my breasts to allow the other to inspect them, then parted my labia, allowing the other guard to reach inside to see if I was concealing anything. After she did that, she moved on to my butt, one parting my cheeks, the other going in. She wore gloves, but no powder or lube, I’ve never had anything like a whole hand up before, so it was horrible, really tough and painful.”

At this point, Rachel held up her hand, indicating that she had heard enough. Eva stopped and looked at Mark, who advised her to “skip the parts about not being allowed visitors or any communication with the outside world, or given food that’s little better than slop, or only being allowed to shower once a week while in chains, what she really needs to know is how you were kept in your cell.”

Eva obliged. “The cell was tiny, with nothing in it, pretty much. Just four walls, a door, and a raised section that they called a ‘bed.’ What a joke. No sink, no toilet, no window. You spend most of the day on the bed. Naked. No uniform for the ultra prisoner. Except the diaper they put on you, can’t be peeing on their beautiful bed. They cuff your hands behind your back, really short chain, then they shackle your ankles, and that’s also a short chain. Bad enough, right? No. Then they link the cuffs and the shackles with a chain which they attach onto the cuff and shackle chains with little padlocks. Then they leave you there, usually gagged. They usually check on you about three times a day, mainly to give you a drink and the sort of food stuff that they make you eat.”

Mark had heard all this before, but he never failed to be amazed by how unpleasant Eva’s time in prison was, as she continued to recount. “Usually about every day or 36 hours or so they’ll remove your diaper, hose you down, barely dry you with paper towels then put a fresh diaper on you. There’s that shower once a week but after a couple of days you really feel nasty. I got a pretty bad rash after a couple of weeks, they just put some cream on me whenever they changed my diaper but didn’t change anything else. Didn’t get better, but didn’t get worse, so can’t complain. Well, maybe! But you kind of forget that, well, it doesn’t become so important, because the position I was restrained in, the position all ultra-status prisoners are restrained in, it fucking kills. Have you ever had your body contorted in a weird position for a few hours? Imagine 14 months. My God. It was agony, and you don’t get used to it, I don’t care what anyone says. Of course, the guards helped, well, they distracted me by treating me like shit, manhandling me, it was like I wasn’t even human to them. They used to throw in a bonus sometimes as well, put an electric stun belt on under the diaper, or electric shock pads on my nipples, then remotely activate them at random times. I used to convulse. I tried to not to vomit, especially when I had the gag in, but I wasn’t always able to hold it in.”

Rachel sat stunned, and Eva concluded her powerful advice. “It was dreadful. I wish I had just sucked it up and spent a longer period of time in normal prison conditions. That would have been bad, but this was hell on earth. I kept thinking, ‘just get to release day, just get to release day, it’ll all be over.’ But when I came out I was a wreck. I still find it hard to adjust. Psychologically, I’m a mess, but also physically, I was so out of shape through not exercising and being restrained arched back like that for over a year. I need physio and a whole lot of therapy, and that’s what I’m doing. You have the chance to avoid that, take it. Take your punishment in a normal jail, and it’ll be easier to adjust back to life on the outside when it’s over.”

The meeting with Eva was a success. Rachel resisted the temptation to shorten her sentence by applying to serve it in ultra-status conditions, and instead spent 7 months in a medium security facility for a set of offenses mostly committed while under the influence of alcohol in her college years.

Not everyone is lucky enough to have Mark as their attorney however, and almost every day the media reports the sad consequences of poor judgements from the accused and their legal representatives. 20-year old Marsha Nolan who admitted carrying a small quantity of pot for her own use on a domestic flight that briefly stopped over in Canada due to a technical fault with the airplane listed the trafficking of narcotics in her declaration, and made a bid of 12 years to the CAD, which was accepted. Not only would this offense have remained undetected, but the declared crime and sentence were far in excess of what was required. 28-year old John Knight also overbid on drug offenses, for the pot plants he had grown in college – he is now serving 9 years. And then there is the infamous case of Jenna Ross, the 35-year old who sold her friend a vehicle that turned out to be faulty and killed her in a crash. Ross carried the guilt despite not knowing about the fault, and when audited declared herself to be guilty of manslaughter and bid for 18 years in high security. To widespread disgust, this was accepted and she remains incarcerated.

Critics of the CAD have accused them of accepting excessive bids like these in order to improve their statistics. Some legal experts also believe that greater protection is needed for auditees who have inadequate attorneys, and who may declare a crime that they would never be convicted of in a court of law, but there are currently no serious efforts to introduce new safeguards.

A focus on some of the extreme cases where auditees have bid too low or too high obscures the fates of those who have competent legal representation and make sensible decisions. To these people, getting it right is still a tragedy, because they will end up with criminal records and possibly serve time in prison. Their lives will be interrupted and possibly never the same again. “I still have nightmares, where I think I’m still in prison,” one former auditee, 29-year Lori Fillion told me. “I left prison 8 months ago but it hasn’t left me.”

The thought of going back disturbs her. “It makes me sick, the idea of being back in a cell, not able to leave, not able to pick up the phone and speak to people when you want, having to go to the toilet in full view of anyone who wants to look, the violent and nasty inmates, the noise in there, the strip searches, the cuffs on my wrists and the shackles on my ankles, hobbling me when I try to walk and digging into my skin. I’m terrified I’ll make a mistake driving, or with my taxes, and end up back there.” Anyone who receives notification that they are under audit will no doubt feel the same dread.

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