by Jay Berger, The Legal Intelligencer —
Originally Published in The Legal Intelligencer, Dec. 30, 2015 —
The question in he title of this post is the headline of this notable commentary authored by Jay Berger and appearing in The Legal Intelligencer: Here are excerpts:
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….
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….
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.