PROTECTIVE CUSTODY

An arrangement whereby a person is safeguarded by law enforcement authorities in a location other than the person's home because his or her safety is seriously threatened.

When a witness to a crime is intimidated not to testify because the alleged perpetrator or her associates have threatened physical violence against the witness or the witness's family, law enforcement authorities have the ability to offer the witness protective custody. Protective custody may last only until the end of a trial or it may last for several years. State and federal governments operate witness protection programs that provide assistance to those who wish to cooperate but who are afraid of physical retaliation.

Until the 1960s law enforcement used protective custody infrequently. Federal prosecution of organized crime figures led to the offering of witness protection to key government informers. In 1964 Joseph Valachi became the first La Cosa Nostra member to publicly testify to the existence of the organized crime group, appearing before a congressional committee. Valachi, who was facing the death penalty, agreed to testify in return for personal protection. He was held in solitary confinement for protection and given $15 a month.

Since the 1970s the Federal Witness Security Program (18 U.S.C.A. § 3521 [1970]) has grown in size. The program is used to fight organized crime, terrorism, gang-related crime, and narcotics trafficking. In 1995, 141 new participants were added to the program, increasing the number to 6,580 witnesses and 14,845 total participants since the program began. Also in 1995, 257 protected witnesses testified at trials against organized crime members, resulting in a substantial number of convictions.

Under the program, the U.S. attorney general is authorized to offer security to key witnesses who have physical safety concerns. The program, which is administered by the u.s. marshals service, provides a new social security number and other documents to enable the person to establish a new identity. It also provides housing, transportation of household goods to a new residence, payments to meet basic living expenses, employment assistance, and other services necessary to assist the person in becoming self-sustaining. The witness's immediate family or a person closely associated with the witness may be provided similar assistance under the program.

In return for this assistance, the witness and family members over eighteen years of age must each sign a memorandum of agreement. The witness must agree to testify and provide information to law enforcement officials. In addition, the person must agree not to commit any crime and to take all necessary steps to avoid detection. Most witnesses remain in the program for two years before pursuing their new lives on their own.

Many states have adopted similar programs for witnesses. This type of protection, however, has come under increased scrutiny. Because witnesses who are convicted criminals are given new identities and moved to new locations, local law enforcement agencies have no knowledge that potentially dangerous persons are in their communities. Murder and other serious crimes have been committed by persons assisted through witness protection.

These programs have also been challenged because a number of high-profile criminals have received favorable treatment. Some drug dealers have been allowed to keep their narcotics-generated money and have avoided prison in return for their testimony against others involved in drug trafficking. Critics argue that it makes no sense to have the government pay to relocate drug dealers and to ensure their safety. Defenders of the program argue that this is a necessary price to pay to convict more powerful crime figures.

Witness protection programs also exist in prisons. To protect witnesses serving a prison sentence, the federal government has created witness protection units within federal prisons. Protected witnesses live a more comfortable life than other prisoners, which includes having free and unlimited access to telephones and cable television and the ability to use their own money to buy food, appliances, jewelry, and other items.

Aside from these witness protection programs, prisons also have protected custody units for inmates who are targets of assault or victims of sexual harassment. Although conditions vary greatly in protected custody units from one institution to another, life is more restricted than in the general prison population. Some large prisons have separate protective custody facilities, but in most jails and prisons an inmate has protective custody status while housed in administrative segregation. This means that the inmate is restricted to his cell twenty-three hours a day and must take meals there as well.

further readings

Burgess, Kristen. 1998. "Protective Custody: Will It Eradicate Fetal Abuse and Lead to the Perfect Womb?" Houston Law Review 35 (March 15).

Fulton, Lori. 2001. "Protective Custody of the Unborn: Involuntary Commitment of Pregnant, Substance-Abusing Mothers for the Protection of their Unborn Children." Children's Legal Rights Journal 21 (fall).

U.S. Government Manual Web site. Available online at <www.gpoaccess.gov/gmanual> (accessed November 10, 2003).