Via Doug Berman (who characterizes the post as “notable,” which always makes me chuckle), former lawyer and former prisoner Jay Berman argues that it should be part of the criminal defense lawyer’s duty to prepare his client for prison.
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.
Berman, following a well-worn path, emerged from prison and decided to become a “prison consultant.”
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.
Nearly every lawyer who did time, together with quite a few other white collar types, figure there is a buck to be made as a prison consultant. It’s almost always a failed effort, both because there are so many ex-offenders offering the same “consulting” services that none can make a go of it, and because they charge way too much for their services to be viable to most defendants. Berman acknowledges this cottage industry, as well as its flaws.
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.
But putting aside the disingenuous nature of the pitch, and that the Legal Intelligencer published Berman’s pitch as if it was a novel idea, despite that fact that these “prison consultants” have been at this game forever, it’s not without some merit. Defendants mostly go to prison (or jail, as the case may be). Many have no clue what they’re looking at, how to handle themselves, what paths are best taken and how it all works.
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.
The suggestion that lawyers never prepare clients for prison isn’t quite true. Indeed, I’ve had clients work with prison consultants, like Berman, on numerous occasions, with the caveats that the individuals used were competent and knowledgeable, and didn’t gouge my clients for their services. But the problem, per Berman, is that lawyers themselves ought to be sufficiently knowledgeable about prison life to counsel defendants directly.
That is, indeed, a problem.
Lawyers are trained in the law, and (hopefully) experienced in the representation of individuals charged with crimes. What they are not is experienced in life in prison. We aren’t in prison. We may go to prison to visit, but we leave soon after we arrive. We have no experience in its reality. In other words, we really don’t have a clue how to survive prison, no less thrive.
For those of us who have been around the block a few times, we pick up quite a bit from clients who have suffered the experience, and can (and do) share some of the detail we glean. But what we also learn is that prison policies seem to shift, without notice or explanation, such that today’s good advice is dead wrong tomorrow. Remember that program I told you to get into? Not only is it gone now, but applying for it (often involving admitting to some “problem” like drug addiction) will now give rise to new issues that will make your life miserable.
Prison policy and practice can be vastly different from institution to institution, jurisdiction to jurisdiction. Even if we have some clue as to one, that isn’t necessarily transferable as to another. That means advice can be “excellent” in one joint, but terrible in another.
And far more important than most of the official rules of prison life are the unofficial rules, the ones that allow daily survival amidst guards, gangs, friends and enemies. For someone going to prison without the benefit of insider cultural acclimation (a sad fact, but a fact nonetheless), there is nothing about their life on the outside, before they got pinched for their financial impropriety, that prepares them for dealing with a world that can be more brutal than anything they’ve ever experienced. Or not, Club Fed isn’t necessarily a dangerous place. Or maybe it is, and you better not accept the offer of a smoke because the price can be far more than you’re willing to pay.
Should our clients be prepared to enter prison? Absolutely. Should that be part of the lawyer’s representation? In the sense that we provide holistic representation, then there is no part of their life that isn’t included in our responsibility to keep them protected. But are we equipped to do this? Not even close. And there is no way that we will ever be properly equipped to provide adequate preparation advice to clients on how to survive a term of imprisonment.
Is a guy like Berman, who’s selling his own flavor of prison prep under the guise of pointing out defense lawyers’ failings, the solution? Maybe he is. Or maybe he is just another “self-proclaimed expert” gouging defendants who are clueless and scared shitless. But his point, that defendants need guidance to navigate the prison system, is true, and criminal defense lawyers fail to provide that guidance.
Whether Berman is the real deal, and whether his offerings are legit, sufficiently accurate and up-to-date, and priced appropriately, is unknown. Whether anyone can fill this gap that really needs filling is a mystery as well. But yes, defendants, rich and poor, white collar or not, could really use preparation to survive, and thrive, in prison, and they are not getting it. It’s too bad prisons don’t do much to make the stay as effective in fulfilling its legitimate purposes as possible, but the chance of that happening is the worst of all possibilities.