I decided to set aside for the moment all the extremely serious issues you will face as a white collar criminal defendant – loss of freedom and reputation, trauma to self and family, humiliation, incarceration – to focus on another issue near and dear to our hearts: money. As you contemplate the loss of your life as you know it, the issue of money may not come first to mind. But it soon will. Because the simple fact is that the process of justice can be very hard on the pocketbook.
White collar criminal defendants come in all shapes and sizes, of course, from multimillionaires to lower middle class. Some, such as yours truly, may have once been at one end of the spectrum but soon found themselves at the other as the unfortunate result of asset forfeitures, court-ordered restitution and the like. In any event, unless you happen to fall within the upper reaches of the upper 1%, you will find that, amongst all your other worries, the issue of money will begin to take prominence. After all, the worst concern faced by any criminal defendant is the thought that their family could fall into poverty or destitution as a result of their wrongdoing.
Money worries will most likely start early in the process. Most of us have to work for a living and typically that living is made in someone else’s employ. That employer, whoever he or she may be, will undoubtedly take a dim view of continuing to employ a criminal defendant. Unless you happen to be self employed or a master of concealment, the unavoidable result is that you will find yourself unemployed quite early in the interminable process. Because the process tends to drag on for so long, you will end up living off of savings.
Now, living off of savings does not at first appear catastrophic. Many of us have prepared for a rainy day, after all. But not so many of us have prepared for a rainy day that stretches on into the foreseeable future and promises a soggy morning of asset forfeitures, a drizzly afternoon of attorney bills, and a torrential evening of incarceration and restitution. And it is these types of expenses that will now skyrocket just as your income dries up. Of course, there may be some mitigating circumstances, such as not being the primary breadwinner or living in a two-income household. If you’re lucky, your assets will not be seized. But the unavoidable fact is that “justice” in our system and our society is very, very expensive.
Take the expense that first comes to mind: lawyer fees. As a former lawyer myself, I have witnessed client sticker shock many times. An hour here, an hour there. At hundreds, if not thousands, per hour, it adds up way too fast. Despite this, my advice is to go with the best that you can afford. It’s only your life on the line, after all. In my case, the best that I could afford was nothing at all. And truth be told, it worked out alright. Just because you can’t afford Williams-Sonoma doesn’t mean that Ikea won’t do. It’s just that you may have to do more of the assembling and heavy lifting yourself. But at the lower end it’s really the luck of the draw, which can be a risky path to take. As a former lawyer, I will let you in on a few secrets that could help reduce your bill: (1) Many, if not most, lawyers do in fact negotiate their fees. See if you can get a discount. (2) Billing by the hour must be the worst system ever invented: your lawyer is incentivized to work slowly in order to bill as much as possible. See if you can negotiate a flat fee or a cap. (3) Go over your lawyer’s bills with a fine tooth comb. If it seems like your lawyer is spending too much time in meetings or doing research, she probably is. (4) If your lawyer works in a firm, agree in advance who can and will work on your case. The worst thing in the world is to receive a bill listing time for scores of lawyers you have never met or even heard of.
If you have a family, the question of how they will survive your incarceration financially will become of primary concern. If your assets are sufficient, then I congratulate you: this puts you into a fortunate minority and should ease your mind considerably. Or it may be that your spouse or other family members will be in a position to earn enough to support your family while you are away. Unfortunately, here, I don’t have any magic suggestions as I did for reducing legal bills. It is an issue I am struggling with at this very moment. My unfortunate and unwanted conclusion is that my family will have to adjust to a new, poorer, reality. My only thought is that this is not a time for pride. Our limited social safety net exists for a purpose, so before you go off to prison look into whether your family qualifies for any assistance. Many of us are loathe to ask parents or siblings for help, but as with public assistance this may be the time to swallow your pride and ask family members for help.
Another financial issue to consider is that it does, in fact, cost money to survive in our prison system. Certain essentials, such as toiletries, flip-flops and the like, are not provided but must be purchased in the commissary. Some prisoners manage to survive without outside help by hustling or doing odd jobs for other inmates, but I’ve heard it is not the most pleasant existence. The maximum you can receive in the federal system is around $300/month. Whether or not you will actually need that much depends entirely upon your personal circumstances and proclivities. I, for one, plan to live on less. But the basic fact is that, if you can in any way afford it, you will want to put aside some cash to keep you in flip-flops for the duration of your confinement.
And now, you say, isn’t that enough? Unfortunately no. I have gone through all the “mandatory costs” that come first to mind but there is one more. You may find yourself, as I did, considering whether or not to “splurge”on what many view to be a non-mandatory supplemental cost: hiring a prison consultant. In my view, as well as my experience, this really isn’t a voluntary cost at all but an essential one, as important as hiring a good lawyer. The unfortunate fact is that lawyers, despite their high fees, do not know everything. Not even close. And this lack of knowledge includes things you might think they should, in fact know: minor things such as prisons, parole, life behind bars, the sentencing process, the Bureau of Prisons, or how to successfully prepare for life after incarceration. These are all issues that will come to concern you greatly and you must watch out for misinformation: my lawyer told me a number of things that were just plain wrong.
Just as with lawyers, with consultants you often get what you pay for. The main thing is that you find a good personal fit, someone you trust, someone who will help you bravely face the present as he prepares you for the future. I did, and it really helped prepare me for what lies ahead. Unfortunately, prison consultants, despite their importance, are not seen by our system as essential, so it’s not as if you can request the court to appoint one for you. If you can’t afford it, I urge you to reach out to consultants and others in this white-collar community of ours. If your experience is like mine, you will find that there is more support out there than you expected. After all, just because we’re felons doesn’t mean we’re bad people. It just means that, more likely than not, we’re poor.
This blog post was also published here, on the Etika LLC blog: The High Cost of Justice.