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Shouldn't Criminal Defense Lawyers
Prepare Clients for
Prison?
by Jay M. Berger - Guest Blogger
It meets weekly on Tuesday evenings.
"I think that the
corrections system is one of the most overlooked, misunderstood institutions we
have in our entire government. In law school, I never heard about corrections.
Lawyers are fascinated with the adjudication process. Once the adjudication
process is over, we have no interest in corrections. ... Nobody looks at it."
- U.S. Supreme Court Justice Anthony Kennedy
said while testifying before a House appropriations subcommittee, lamenting
lawyers ignoring the prison phase of the criminal defense process.
I was an attorney in
Pennsylvania for over 30 years. I was also, more recently, a federal prisoner
for almost five years. In 2007, I was charged with one count of mail fraud
affecting a financial institution (Title 18 U.S.C. Section 1341). I pleaded
guilty and served my sentence in five facilities of varying security
classifications from June 2008 until April 2013. During the entire time I was
incarcerated, I do not recall hearing of a single instance, my case included,
where the defense lawyer provided any meaningful prison preparation or
counseling for his or her client as part of the representation.
What completely baffles me
about that omission is that there is roughly a 97 percent conviction rate in
today's federal criminal justice system, almost all of which derives from
guilty pleas, and the outcome in most cases is incarceration. Because this
inevitability of serving time in prison is known well in advance of actual
confinement, there are numerous prison-related matters that can and should be
addressed during that interim period. They include, among many others:
• Establishing eligibility
for the only early-release program available.
• Prison designation and
inmate classification.
• Requirements for
reporting to prison and what to expect upon arrival.
• Essential medical
procedures for pre-existing conditions.
Given this nonexistence of
prison counseling by defense
attorneys, one recent approach taken by many
clients has been to retain independent prison consultants without conferring
with their lawyers.
However, this route usually creates more problems than it
solves. Due to today's climate of mass incarceration, the criminal defense field
is suddenly being flooded with former inmates who are magically expert
consultants the day after they leave prison. They monitor the court dockets for
new cases and immediately solicit new defendants directly. These defendants are
extremely vulnerable at that point and retain these "consultants"
primarily out of fear of the unknown.
Yet these self-proclaimed experts are too
often providing wrong information and making promises that they cannot possibly
keep. They are even offering legal advice that conflicts with that provided by
the defense attorneys, and all the while they are draining defendants of their
resources. Incidentally, this is exactly what happened in my case. I am
convinced that there are no more than a handful of credible prison consultants
in the entire country.
So, how do we address
Justice Kennedy's concerns?
To me the solution is fairly obvious. It must be the
responsibility of the defense attorneys to provide prison preparation services
to their clients. Having been both a lawyer and a criminal defendant, I
understand how imperative it is for clients to feel they can look exclusively
to their defense attorneys for guidance in all areas of their cases. This is
especially true where one of those areas ultimately involves a journey through
prison. Therefore, the attorneys must either acquire enough knowledge to offer
these services themselves, or in the alternative, retain a legitimate prison
consulting service to work closely in conjunction with them. I view the latter
approach no differently than when a defense attorney deems it necessary to
retain any reliable, independent expert to provide essential skills related to
the case.
Accepting the above premise
as correct, how do we actually convince criminal defense attorneys to
incorporate some methodology of prison expertise as an integral part of their
cases? Realistically there has to be incentives for them to do so, and we might
as well begin with the obvious one. There is no question in my mind that
providing this service would be a source of revenue and a profit center for the
law firm. Defense attorneys are compensated for their time and skill, yet they
are ignoring a critical (and billable) component of their criminal defense
representation.
Criminal defense attorneys are leaving it instead for someone else to handle,
completely unsupervised and usually at an exorbitant cost to their clients, and
that is something that simply should not happen.
I urge any criminal defense
lawyers reading this to ask your clients facing incarceration if they would
like to incorporate expert counseling on how to navigate their way through the
prison abyss as part of their legal fee agreement. I know what their answers
will be.
The other significant
incentive for defense attorneys would be having clients who were well informed
about their forthcoming time in custody. Inmates and former inmates talk about
their lawyers incessantly and quite often mention the lack of attention given
to preparing them for prison. That is why it was so heartening to hear this
issue raised by a Supreme Court justice, because the truth is that every inmate
in every prison in America could say the very same thing about their lawyers
and it wouldn't make a bit of difference to anyone.
I submit that any defense
attorney who offers clients the strategies they need to manage through
confinement and emerge successfully would add substantial value to the legal
representation provided. It would bring an element to a criminal defense
practice that is not typically available, and there is no better testimonial
for an attorney than former clients who are satisfied that they were well
represented in all facets of their cases. Word would spread and potential
criminal defense clients might just be inclined to gravitate to a law firm that
provides a more comprehensive representation by including prison counseling. In
my opinion, this would significantly set that particular criminal defense
practice apart from its competitors.
Those of us who have taken
that shameful and lonely walk through prison doors could have desperately used
some help from our defense attorneys to prepare us for what we were about to
encounter. I assure you that we would have been eternally grateful for the
consideration given to this most important aspect of our cases. I respectfully
implore my former colleagues of the bar who practice criminal defense law to
heed the words of Kennedy and begin paying attention.
This blog post originally appeared as an Op-Ed in The Legal Intelligencer.
Jay M. Berger is a graduate of Penn State University and
Case Western Reserve University School of Law. Since completing his time as a
federal inmate, he has participated in the production and business development
of Prisonology, a Web-based educational program and a CLE course for lawyers
whose clients face incarceration. He also authored and published a book titled
"The Fall of the Firmest Pillar," which is a memoir about his journey
through the federal criminal justice system. He currently is in the process of
applying for reinstatement to the Pennsylvania bar. Jay can be reached at bmj253@gmail.com.
Comments from Social Media:
This is an excellent article. I agree this aspect of a criminal client's representation is too often overlooked or underaddressed. Thanks for sharing. - Lee Marshall Holtry
I agree. Preparing a client before sentencing may help with the transition process for newly convicted. Reduced inmate suicide and decrease violent crime against the first time, newly incarcerated. - Christina Frascona
When a criminal defense lawyer calls, I generally spend time with their
client attempting to get them ready. A friend of mine who is a formally
incarcerated offender and I work together; as a former prison official I
work the official side, and he works the informal. We do not get
involved generally until the client has been found guilty. The other
thing criminal defense lawyers need to be doing is explaining collateral
consequences. There is no legal obligation except in immigration
cases, but it my opinion there is an ethical one. Problem, a lot don't
even know of the many collateral consequences which their clients may
face post release. - Art Beeler
And it is changing rapidly. - John Turner
In my role as a sentencing consultant, I always discuss the prison
environment, and how both clients and their families can successfully
navigate the coming years behind bars. I can accomplish this because I
am familiar with the terrain behind prison walls. For attorneys who are
less familiar with the world behind bars, such guidance may be less
helpful. Many attorneys also do not have the credibility (i.e., "bond")
with their clients at the end of the adjudication process. - Charles Lanier
While working in the California prison system, I deal with numerous
attorneys & corrections consultants on a daily basis. The attorneys
I have dealt with lack the experience in corrections law, let alone the
knowledge of informing their client of the expectation of prison. In
California, the prison system is changing on a daily basis, there are
numerous factors that could impact a new inmate in the system. Their
commitment offense, gang affiliation, ethnicity, physical stature, and
county of commitment play key roles in an inmate's success for a better
word while housed in prison. There is no good advice for a new inmate
being housed in a correctional setting, let alone taking the advice of a
criminal defense attorney. The only recommendation I would give any
new arrival inmate would be to do their own time and try to avoid the
prison politics. Each prison has their own characteristics, I have
worked in 5 different prisons and none of them are similar. - Henry Cervantez
If you don't like it just go away. We need people to help offenders STOP
THE CIRCLE. Why can we not do that with so much pain at the end. - Liz Robinson
We use a criminologist, Joel Sickler - John Zwerling
A lot of lawyers put this off. It's like parents not wanting to tell their children about the birds and the bees. - William M. Saks
Most defense lawyers have neither the time nor the real experience to explain what happens in prison -- I suggest that someone should be available on the 'rolodex', who knows, who has done time, to meet with clients, especially the more vulnerable ones. It's not an ethical duty, I'm sure, but could save a life or two. - Charles Hargreaves
Yes, I continue to wonder why this crucial step isn't covered. I just met with a man facing prison time who wondered when his attorney would tell him what I did about preparation for surrender. It should be an ethical duty in my opinion!- Serena Ligouri
Prison is a terrible experience, even Lompoc. How does one prepare a client whose freedom, for ever, could possibly be taken away by the Justice system? - Carl Knudson
Criminal attorneys should absolutely understand prison deeply. They ought to be required to see prison in real life. It might also motivate them to work harder for their clients. One of the most disappointing aspects of attorneys and prosecutors is their lack of real world empathy in the justice system. practicing law is about real people beyond all of the thought exercises. Judges are using the first to forget this it seems. Go spend a week in a prison setting. It will change anyone. This is definitely not a CLE course by the way. - John Richards
Agree, with John, few understand how terrible it is to be jailed.
Attorney's who have to visit their in custody clients get a taste, but
they get to leave at the end of their visit. I know of a few Judge's
who understand how terrible it is have one's freedom taken away. - Carl Knudson
How would a criminal defense lawyer be trained to give this advice? - Peter J. Tomao
As one who has nearly 30 years volunteering, including three years I served as the Assistant Chaplain, I completely agree! My interactions with both juveniles and adults, County to Federal, is
there was no preparation for their incarceration experience. Many exist
in continual fear of the unknown.
I wholeheartedly agree there is a vacuum, a vacancy, in what the new
"inmate" should expect; ie., process and procedures and the general
climate of living incarcerated is concerned. Whether this "education"
comes from the attorney, or a subcontracted individual or agency, I
believe some preparation would reduce violence and suicides
significantly, and subsequently, recidivism.
Thank you for your concern and bringing this to light! This is a
critical part of the individuals conviction.
- John Kendall
KAIROS Clergyman
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