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Has Prison Lost Its Sting?

U.S. Department of Justice’s Bureau of Justice StatisticsOne of the hardest duties of being a white collar defense lawyer is telling people that there is a chance (sometimes a certainty) that they will be going to prison. For the most part these are people who have never seen the inside of a jail cell and know nothing more than what they’ve seen on TV or in the movies. Anxiety and tears are common. More practiced defendants are less fearful, but still hope mightily to avoid it.

I have, however, come to represent a few people in recent years who don’t seem particularly disturbed by the prospect of a lengthy prison sentence. They regret being able to see their families, it seems, but display considerable, and surprising, aplomb otherwise, resisting tactical choices such as cooperation which could greatly reduce their prison time. I found this jarring at first. My role, as I saw it, in serving my clients’ interests was to see that they did the least amount of time in prison if I could not first secure their liberty. But some do not see it the same light, having other values they must hold higher. What were those, I wondered? Honor of not being a snitch? Laziness in not having to work (a/k/a the three hots and a cot syndrome)?

I often tell clients headed to prison that while it will be unpleasant, it will not be as bad as it seems in advance. At least that’s what former clients usually tell me after they are released, and I believe they are right. Psychological experiments have shown that a dreaded event (a missed train, for example) is in hindsight not the disaster it was expected to be. So how effective is prison in deterring future criminal conduct by the person who has spent time there? This is after all, one of its primary purposes, as the often-incanted §3553 factors tell us. We have all heard how recidivism rates are high and explanations come to mind: few economic options outside of a crime (the progressive perspective) and poor impulse control (the conservative one) are a couple. White collar defendants would seem less susceptible to these factors. They generally have job skills and for long periods have led law-abiding lives. But recidivism statistics don’t bear this out. In a 2002 study of recidivism by The U.S. Department of Justice’s Bureau of Justice Statistics, which tracked nearly 300,000 state prisoners released in 1994, prisoners serving time for fraud were nearly as likely as drug dealers to be back in prison within three years. (And much more likely than murderers.) Interestingly, a comparison of recidivism rates between 1983 and 1994, a period when sentences grew longer, showed almost no change in recidivism rates.

Common sense tell us that prisons are a necessary component of our criminal justice system, right? But as governments look for ways to save money (they spend $42 billion annually on prisons), it might be a good idea to look at whether prisons are really serving one of their fundamental purposes — keeping prisoners from committing crimes after their release.

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