There are certain rights you can expect and privileges you hope for when you’re in jail. You never know when you’re going to find yourself locked behind bars. Maybe it’s spending the night in jail after you’re stopped for a DUI. Or being held after arrested at a protest. If you or a loved one is in jail, it’s in your best interest to know your rights and understand what could and should happen.

The New York City Department of Correction houses on average more than 10,000 inmates every day at the Riker’s Island complex alone. That’s more than the entire population of many state correctional systems. Among four borough jails in Bronx, Manhattan, Brooklyn, and Queens, there’s another 3,000. There are also court detention facilities located in the court buildings in every borough, as well as three mental wards. While the city plans to close Riker’s Island, it will be a long process that will take years. Depending on what you’re arrested for in New York City, it’s most likely you’ll be held in a borough jail or court detention facility throughout most of your time in custody.

As a defense attorney I get a lot of calls from clients in jail who need help right away. One of the first things I get asked is are they going to be safe and how soon they can get out. Many are also afraid of a possible transfer to what they consider more dangerous facilities if they can’t make bail. Sometimes, people have already had a negative experience during their arrest and want to know if they have a case for their mistreatment.

The rights and expectations you have when in prison are different from what you should expect when you’re in a borough jail overnight. In prison, there are deeper issues around visitation, religious rights, and medical rights. While being held in custody on a short-term basis while awaiting arraignment or trial, you should still expect to be treated with dignity and without violence.

In this fourth post in my #KnowYourRights series, I’m going to go into what you can expect when you’re in jail and outline some of the key rights you have. We hear more reports of abuse by guards in prison than in the borough jails, but it still happens. In this post, I’ll be focusing on short-term jail stays. If you want to see more information from the NYS Department of Corrections, they publish a section of their website on issues such as allowable items, rules and regulations, and what families of inmates need to know. You can find some helpful information there, too.

Regardless of what step you are in the custody process, you should always be able to expect basic, humane treatment:

Step 1: Intake

When you’re taken into jail and processed, you can expect some discomfort. Nobody likes being handled or forcibly walked around in handcuffs. But you should expect your experience to be free of humiliation or undue force. Regardless, prepare yourself mentally for not having full control of your physical situation. Everything will go a little more smoothly for you.

If an officer acts violently, if they use offensive or racist statements, or if they do something you feel is wrong, don’t react in the moment. Don’t lash out or fight. Keep good mental notes of what’s happening. If you’re injured or abused while you’re in jail, the time to deal with it is after you’re out of the jailhouse. Save it for the courthouse. If you’ve been injured, make sure to tell your attorney exactly what happened as soon as possible.

Personal Items

Your personal items will be confiscated and placed into an envelope for safekeeping. You may have to sign for what you have. In a case where they’re processing a lot of arrests at one time and you’re not given a reference number, ask for it. Mix-ups happen.

Phone Calls

You’ve probably watched crime TV shows where suspects are allowed one phone call. That’s convenient for the story but it’s not exactly what happens when you’re in custody. The reality is that phone use is a privilege. The number of calls you get is up to the discretion of the whoever is supervising you.

If you’re loud or verbally abusive you might not get the treatment you want. You may have to tell the officer the name of your attorney and they’ll make the call. You have a right to an attorney, but not a phone call. Don’t demand your “one phone call” unless you want to wait longer for a phone call.

Access to Your Attorney

By law, you have a right to an attorney [link]. If you can’t afford one you’ll get a public defender but it won’t be right away. If you know your attorney’s name, you can ask that they be called for you during intake. You can’t expect to have access to your mobile phone so always have important numbers memorized if there’s anyone else you want to call. I encourage anyone to have an attorney on speed dial. Even if you haven’t needed them yet it’s still a good idea. You never know when you might be arrested.

Personal Identifying Information

When being processed you’ll have your photo taken and you’ll give your fingerprints. In New York, only criminals convicted of misdemeanors and felonies have to give DNA. But in 2013 the Supreme Court ruled that your DNA may be taken when you’re arrested.

Many attorneys and civil rights advocates see this as an unreasonable search, and DNA can be taken on arrest. In New York state, this is not policy, but technically you can’t refuse if they request it.

Religious Rights

Kosher and halal meals are provided to inmates in New York. You’re also allowed to practice your religion, but you won’t be granted any special privileges. By law, you may practice your religion if it doesn’t affect the jailhouse process. For an example, if you’re in the middle of processing you can’t expect for the process to stop for you to kneel.

Medical Rights

If you have a medical condition, there are a few ways it can go. If you have your medication with you when arrested, it will be confiscated. You’ll have a chance to tell the officer what your medical needs are. If you don’t have medication with you, a family member may bring the prescription bottle, but only to verify it. If you’re at risk of harm without treatment while you’re in custody, you should expect to receive treatment [link]. If you have a medical condition that you’ve communicated to officers and medical personnel, also tell your attorney so they can support your effort to get treated.

LGBTQ Rights

You should never be forced to endure violence in jail because of your sexual orientation. If you’re transgender and going through hormone treatment, you may not be entitled to medicine during short stays. (For stays in New York prisons, transgender prisoners can expect hormone treatment.) Instead of being moved to a different area consistent with your orientation, you may be placed in a solitary confinement for your protection. LGBTQ rights in jail is an issue that’s filled with controversy. As always, if you feel you were harmed, neglected, or abused, talk to your attorney.

Step 2: Interrogation

An interrogation can happen at any time. Or depending on what you’re accused of it might not happen at all. If you’ve been reading my blog, you know my opinion on talking to police before or during arrest. This stands for after arrest, too. Don’t do it! No matter how much you’re questioned or how long you’re questioned. Even if you know you didn’t do anything wrong. Don’t answer questions without an attorney present. This is one of your basic rights and you should always use it.

Here’s something else to remember about being in jail. Everything you say can be used against you. And that means phone conversations and idle chatter that police may overhear. Thanks to those TV shows, there’s some confusion over Miranda Rights. Police are only obligated to tell you those rights when they’re initiating a custodial interrogation.

Even if they haven’t “read your rights” to you, consider everything you say to be on the record. Although you might think your telephone calls or random conversations aren’t admissible during a trial, a fairly recent court decision showed that you can’t rely on it. Police can legally take the information they hear and use it in their investigation. And in some cases they’re fighting to use recorded conversations in court. So yes, everything you say can be used against you in some way.

Step 3: Holding

After intake, you’ll be held until your arraignment. In most instances, you’ll be released within 24 hours or less. In New York City, the justice system is designed to move you through arraignment quickly. While you’re being held, the quality of your experience is going to depend on which jail you’re being held. Some jails are more spacious than others. Some guards are more lenient or speedy in giving privileges. They can’t discriminate but they have discretion. You might be placed in a cell where you’re alone or you could be in a cell with multiple other inmates awaiting arraignment.

I get a lot of questions about what kind of personal space should be expected. Don’t be prepared for a five-star experience. If you’re awaiting an arraignment you’ll most likely be in a group holding cell. If you’re  held longer, you’ll given a place to sleep and a communal toilet. In a lot of situations, it’s in a corner of the room. You won’t have privacy.

While you’re in custody before arraignment, the state is responsible for your well-being. Officers don’t have a right to abuse you, and you shouldn’t be injured. Even if things get heated, unreasonable force should nevere be used.

But other things can happen. Did you get placed in a cell with an inmate who appears mentally ill or becomes violent? Did you get attacked? Were you refused a halal meal if you requested it, or was your meal intentionally delayed? Were you denied the right to abide by your religious practices? Were you denied medication?

If you were injured, assaulted, abused, or feel you were treated improperly it’s always a good idea to tell your attorney as soon as you can. Being held before an arraignment or trial should not be a time and place for you to be punished.

Step 4: Arraignment

During the arraignment, your plea will be recorded and you’ll either have bail set or be released on your own recognizance. Your attorney will be present and will do all the talking. If bail is set, you’ll have the chance to raise it. Your attorney most likely will have advised you in advance so that you can be prepared to post bail quickly.

Even though it’s state law in New York that suspects may be held no more than 24 hours before arraignment, a recent case against night court judges in Queens that clocked out early does create some questions about whether suspects arrested late will have to wait until morning.

The Most Important Rights When You’re in Jail:

The list of rights I’m sharing aren’t intended to be comprehensive. It’s just designed to give you an idea of what to expect when you’re in jail and be prepared to protect your rights. This isn’t intended to be legal advice. Never use an article in place of talking to an attorney and getting legal counsel on your specific issue.

When you’re in jail, every right is important. I’m going to leave you with the most critical ones that can affect the outcome of your eventual trial.

1. You have the right to remain silent and talk to your attorney before answering any questions. Police may want you to believe that if you “clear a few things up” that they’ll take off the handcuffs and send you home. That won’t happen. When you’re in jail after being arrested, don’t talk to police without your attorney advising you first.

2. You have the right to having your attorney present when you’re being questioned. Even if you’re very uncomfortable and just want to get the questioning behind you, wait for your attorney to arrive before answering questions.

3. You have a right to speak with your attorney privately. Always ask to have all cameras that may be recording a room turned off. A jailhouse recording between you and your attorney taken without your knowledge may not be used as evidence. But it’s in your best interest for police to not have access to your supposedly private conversations because it can be used during the investigation. Even if they’re not intentionally trying to record you, sometimes cameras are on by default.

4. You have a right to humane treatment. You can’t be deprived of food for long periods, you shouldn’t be housed in an area that’s uninhabitable due to temperature or severe crowding. You shouldn’t be physically abused or neglected.

5. You have a right to be arraigned quickly. You can’t be held for long periods of time before you see a judge. As I mentioned before, in New York City it’s state law that you must be arraigned within 24 hours.

I could easily write another 20 articles on specific rights when you’re in jail. There are so many issues that come into play such as disabilities, sexual harassment, work detail, visitor procedures, and much more. If you have a question I didn’t cover in this article, always feel free to call me and ask. I might even feature your question in an upcoming article.

Other articles in the #KnowYourRights series:

Know Your Rights: When Police Are At Your Door 
Know Your Rights: When You Call the Police
Know Your Rights: When You’re Arrested

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