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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 firstname.lastname@example.org.
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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