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December 30, 2015

"Shouldn't Criminal Defense Lawyers Prepare Clients for Prison?"

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.

December 30, 2015 at 11:58 PM | Permalink


Very original and good point by this lawyer and former prisoner.

I would take it a step further. The plea agreement is a bilateral contract, I believe.

If I consent to something by my signature, should it not be informed consent?

Failure to provide counseling about prison life represents a failure to provide informed consent. Such information is the duty of the promisor. That is the prosecutor in a plea deal.

All plea deals should be voidable based on a 1000 years of common law seeking,

1) prevention of unilateral mistake;

2) reliance on the good faith of the promisor, who is in a better position by experience to inform the promisee;

3) to prevent a contract if knowledge of the cost of the consideration or detriment would have caused the promisee to never sign;

4) enforcement of the duties of the prosecutor to the defendant in statutes covering the Rules of Conduct, of Evidence, of Criminal Procedure, with these plea agreements void by illegality if the duties were not carried out.

Posted by: Supremacy Claus | Dec 31, 2015 5:36:11 AM

Aside from prison counseling, I would note several other collateral issues that most defense attorneys ignore: 1) assuring that their client gets the correct jail time credit (a big issue when a client has multiple cases in multiple counties); 2) assuring that the state Department of Corrections correctly calculates parole eligibility. Admittedly, these can be complicated issues but getting a slightly better plea deal for the client can become a waste of time if clerical personnel in the state Department of Corrections and/or Parole Board miscalculate when the client is eligible for release or do not get the information necessary for a proper calculation.

Posted by: tmm | Dec 31, 2015 10:37:44 AM

Seems fairly obvious though many defense attorneys are dealing with repeat offenders that are quite familiar with the system. The attorney here seems to be a somewhat atypical case, but then each defendant might have specific special needs. A recent Will Ferrel movie saw some humor in preparing for prison, but clearly it is no laughing matter on a basic level, and like someone going overseas in the military etc., prep is important.

Posted by: Joe | Dec 31, 2015 10:53:31 AM

Attorneys also should educate themselves and their clients to the fact that A) sex offenders are not eligible for prison camps B) that even though your client is supposed to go to a level 1 facility, they may in fact end up in a level 2 facility because that's where the BOP chooses to put them, and if they didn't have enough "points" to warrent a level 2 facility, the BOP will give them points C) even though you suggest nearby federal prisons to the court at sentencing, your client may very well end up hundreds of miles away from home, at a prison they never heard of, again, the BOP chooses.
Detention centers prior to sentencing, holding cells at the penitentiary prior to transfer to prison, all of this is a foreign land to a new inmate, surely attorneys can educated themselves about what their client should expect, and then educate their client, especially considering the fees they charge.

Posted by: kat | Dec 31, 2015 1:10:10 PM

Criminal defense lawyers are not social workers. They are not provided free of charge to prepare the defendant for the consequences of his/her criminal activity. Their responsibility lies in preparing and executing a defense and ensuring not only that the state has met its burden but that the sentence is no longer than the law requires. The more we go down this road, the more we surrender the idea of personal responsibility.

There still is such a thing as self-study. I suspect many of them used such a method to learn to commit their crimes and since we do not have anywhere near a 100% capture rate, most assuredly the vast majority of criminal activity goes unpunished. In other words, it is successful. Perhaps they could apply such industriousness to their upcoming predicament rather than burden criminal defense lawyers with yet another ancillary task.

Posted by: David | Dec 31, 2015 2:32:38 PM

Criminal defense lawyers are only provided free of charge in certain cases where the person is unable to pay for them. But, either way, why does preparing a person for prison a problem regarding "the idea of personal responsibility"? Prison isn't enough? You need to require "self-study" and so on regarding preparing the person to go there?

A lawyer has broad responsibilities to advance the interests of the client, including to prepare them for the loss of their life, liberty and property. The lawyer doesn't have the responsibility to hold the client's hand if they don't want to do something. There is still some "personal responsibility" there.

Also, having the person be prepared benefits others too, since not being prepared is likely to make things more difficult for other parties in certain ways too.

Posted by: Joe | Dec 31, 2015 4:08:39 PM

If one reads the article, the author points out he provides the service he describes. Article is a bit of a commercial.

I am arguing for the opposite, not the duty of the defense, but the duty of the prosecution, as the adverse party to a contract.

Posted by: Supremacy Claus | Dec 31, 2015 4:21:15 PM

Joe - free of charge counsel represents the vast majority of criminal cases. If paid for counsel wants to offer such a service more power to them.

My concern is that the more ancillary services expectations we heap on indigent defense counsel the more defendants can sit back and say that's my attorney's job. To me that reduces a defendant's personal responsibility to accept and make me the most use of what is coming.

Posted by: David | Dec 31, 2015 8:15:58 PM

David.When the duty is on the lawyer, you believe in personal responsibility. Convenient.

Posted by: Supremacy Claus | Dec 31, 2015 8:36:17 PM

"vast majority of criminal cases"

I found a data point that 2/3 federal, and 4/5 defendants in large state courts are involved here in felony cases, which leaves a significant number (putting aside misdemeanors where significant jail time is still possible), but I'll grant that.

But, anyway, the person is still going to prison. What "personal responsibility" is lacking here for helping them to prepare for the significant change in their life which that entails? The lawyer is not simply hand-holding; the defendant still can have responsibility to make use of the materials and other advice provided. And, the preparation can help third parties.

This isn't some trivial thing and if a lawyer had similar responsibility to advise for some loss of liberty or property in some other context, it seems like something we'd expect them to handle.

Posted by: Joe | Dec 31, 2015 9:54:16 PM

"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."

Another god-damn rent seeking lawyer.

Posted by: Daniel | Jan 1, 2016 1:40:29 PM

Daniel. It is rent seeking if he provides no value in return for money taken at the point of a gun. You may feel he provides no value, but at least he is not doing it at the point of a gun.

In the original rent, the lord took a third of the crops, and provided nothing. Not even protection from the Vikings, which would have been highly valuable. The sole benefit to the hard working serf was to not be killed, as if in an armed robbery. That is why rent seeking should be criminalized, including felony murder. It is a crime, a middle class euphemism for armed robbery.

Posted by: Supremacy Claus | Jan 1, 2016 4:03:24 PM

I would expand David's point, the more expectations are placed upon counsel the more opportunity there is for the offender to then turn around and make an Ineffective assistance of counsel argument. Maybe at first such an expectation would not attach but I could well see it morphing over time. Far better that we don't even start down that road.

Posted by: Soronel Haetir | Jan 1, 2016 4:16:27 PM

Every judge should be required to do a week in a prison, not a jail, prior to being allowed to sit on a bench. Every defense lawyer the same before being given a ticket to ride. A "ticket to ride" is a law license.

Posted by: Beldar From Remulak | Jan 2, 2016 11:31:25 AM

Forty years ago or thereabouts, I worked on some so called "prison reform" cases filed in federal court in Southern Illinois. I went to a federal prison and a state prison to meet with our clients on a daily basis. They had rough lives but some were quite interesting and fun to talk to. There was a group called The Church of The New Song. These inmates formed a religion of that name and fought for religious rights in the joint. Having done this kind of work and tried a couple of cases in federal court over inmate rights, I gained some knowledge. Later though it is hard to impart to a criminal defendant just what it is like when they hit the prison. A state mental hospital is worse than a prison. Do not think you are doing the client a favor by getting them committed rather than convicted.

Posted by: Liberty1st | Jan 2, 2016 10:12:07 PM

Tell the client that they face freedom or hell. Tell them that they can go to hell in a handbasket or go rob a bank, get some money, and hire a lawyer with trial experience.

Posted by: Beldar From Remulak | Jan 3, 2016 12:43:33 PM

If we're going to assign the task of preparing people for prison arbitrarily, let's assign it to prosecutors, since they're the ones who bring the charges that result in convictions. Or maybe we can assign it to judges and their staffs, since the court imposes the sentence. Or maybe--crazy idea, I know--corrections departments could do it, since after all they run the prisons.

Or maybe we could make prisons humane, so that they deprive people of their liberty but not their dignity. We could stop pretending that decisions based on cost are somehow necessary for "security". We could stop charging prisoners and their families exorbitant fees to talk on the phone. We could stop overcrowding prisons. We could stop isolating people in solitary confinement for years. We could stop acting like convicts are a different species of animal than from regular humans. We could stop treating prison rape like a joke and actually supervise inmates so they feel safe. Maybe if prison stops being a dystopian hellhole and more like the humane time-out that it's supposed to be, people wouldn't need to be "prepared" for it.

Posted by: C.E. | Jan 4, 2016 2:08:00 AM

Making prisons more humane is a good policy but it won't change that it will be a great adjustment that warrants preparation, preparation that will not just benefit the prisoner.

I think prisons probably already prepare the person in some fashion -- e.g., in "Orange is the New Black," the woman herself showed up to prison and I assume was given certain instructions beforehand. Still, a person's lawyer in our system is usually seen as the best one to protect their rights and interests.

A concern is made about ineffective counsel claims. I really doubt that would be much of a problem especially if basic information is provided given the arguably fairly strict minimums before such a claim is met rules even now. But, if it is a game changer, simply make it not something such claims could target.

Since better preparation can improve things for the defendant, the prison (given the person is more prepared) and third parties (who can be negatively affected in avoidable ways here), on balance, especially with that caveat, it is worth the candle.

Posted by: Joe | Jan 4, 2016 5:56:28 PM

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