Jay is a member of our Confidential Online White Collar/Nonviolent Support Group, the first in the nation. It meets weekly on Monday evenings. It is offered free of charge to our community. Our 146th meeting will be held on Monday, March 25, 2019. If you, a friend, family member, colleague or client have a white collar or nonviolent criminal justice issue, please join us. Information at: prisonist.org/white-collar-support-group.
“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 on prisonist.org in July 2016 and 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 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. Jay can be reached at firstname.lastname@example.org.