The Price of Freedom

A couple of months ago, an anonymous commenter wrote:

I had a client who stole roughly 250k from her employer over the years. Yes, she was able to post bond. Yes, she got a public defender. No, she couldn't come up with any cash to pay in restitution. Yes, she did go to prison. Yes, she got out not too longer afterwards and drives a much nicer car than me.

*sigh*
Earlier this month, WotL wrote:

My other case is also a first arrest. If she agrees to pay restitution, she will avoid a conviction. It's a good deal. My client insists that she didn't do anything, and is angry that she was even arrested in the first place. She believes that this is a vengeance issue, but after I did some investigation and advised her that she doesn't really have a good defense, and that the District Attorney seems to have a pretty solid case, she said "If that's what I have to do then I'll do it." Should I tell her to just pay the money and be done with it? Pay it, get no conviction, move on with your life?
I've had similar cases and I've put a lot of thought into restitution. I think an interesting question is, how much time in jail would you be willing to do for how much money?

So, in the case in the first comment, let's figure this woman stole $250K (I didn't even the need the "she" to tell me it was a woman, that was a no-brainer). And let's just say that she did 1 year in prison. (I'm just making up the prison time. It definitely could've been more, and I'm not factoring in parole time.) And she knew that after she got out of prison, she had $250K waiting securely for her. (I'd like to think it'd at least be in an interest bearing account, but let's just say it was buried in the backyard.) Is that worth it? Is a year in prison and a criminal record worth $250K? It's a lot more than I make in a year. But, having a criminal record for stealing from your employer means you're probably going to have a hard time finding a (good) job in the future. And $250K is certainly not more than I could make in a lifetime. Although, maybe for some people it is. If you made, say, $30K-$40K per year, and you're a little bit older. It might actually be a good retirement plan.

People compete on Survivor, where the living conditions are arguably much worse than prison, for a chance at $1Mil. Let's compare:

Prison: Pros: Roof over your head, three square meals, less mosquitos, fewer "challenges," more visitors allowed. Cons: Can't quit when you feel like it, possibility of assault or rape.

Survivor: Pros: Great outdoors (if you're into that sort of thing), better scenery, co-ed setting, anyone who assaults you will get kicked off the island, can quit anytime you want, 40 days maximum. Cons: Eating rats or bugs or nothing at all, forced to participate in challenges (particularly if you want the money), not guaranteed a roof over your head, not guaranteed a million dollars or a car or anything at all.

(Of course, you could always win a million on Survivor, and still end up doing jail time.)

If you wouldn't do one year in prison for $250K, would you do it for $500K? A million? There's got to be a breaking point where it might be worth it to do the time. And it's probably different for everyone. For instance, if you're working at a law firm and making $100K a year anyway, it'd probably take a lot more for you to give up that job than, let's say, someone who is making minimum wage.

Or, consider lifestyle. If you're living in a nice house with a tivo and cartoon network and a computer and wireless internet, it's going to be a lot harder to give up than, let's say, someone who is living in squalor.

Now, on to WotL's client. Let's say that you were accused of stealing one thousand dollars. And you absolutely positively did not do it. No way, you're absolutely not guilty. But, for arguments' sake, let's say that the facts make that hard to prove.

Your lawyer says to you, "If you repay the $1K, they'll dismiss the case. If you don't, we'll go to trial. Maybe you'll win, maybe you'll lose. If you lose, you'll have a criminal record and you'll probably get jail time, my guess is that it would be about thirty days in jail." Do you have that much faith in the system? (I sure don't. Innocent people get convicted, guilty people go free. The system is far from perfect.) Would it be worth a thousand dollars just to avoid the risk? Many people spend a thousand dollars or more on a lawyer, and that's just to help them avoid the risk.

But is it different if you're "repaying" money that you didn't take in the first place? Knowing that money is going into someone's pocket, maybe even the person who wrongly accused you?

If the amount of jail time you were risking was greater, would that change your analysis? If you were risking a year in jail, two years in jail, ten years in jail, would it be worth a thousand dollars?

Most people have access to one thousand dollars, if that's what they needed. Maybe they don't have it cash in their wallet, but at the very least, they might know someone or a few people who could come up with the money if necessary. And, if you actually stole the money, it's a little more likely that you'd have the money. (Although, I think that the poorer you are, the more likely it is that you spent the money as quickly as you got it.) So, if you have some money, you might be able to buy your way out of this situation. And it'd probably be worth it. But someone who is homeless, or on public assistance, doesn't really have this same option. They just have to take their chances in an imperfect system.

Another scenario I see sometimes, as a public defender, is a client who has the means to hire an attorney. I will represent them at arraignment only, and after that they will have to hire a private attorney. In this scenario, the client is charged with something very minor, such as a traffic violation or, at worst, marijuana possession. Client tells me that he is not guilty, not guilty, not guilty. The court offers him some lesser non-criminal charge, along with the payment of a fine. Here are my client's options at that point: Take the deal, pay the fine, knowing he did nothing wrong, and be done with it, OR spend more than the cost of the fine to hire a private lawyer, and, in the end, he might end up paying the fine anyway. Financially, at least, it makes more sense to take the deal.

Which brings us back to WotL's scenario. Her client may have to take numerous days off from work to fight the case. And, even if she fights the case, she may still lose, and may still end up paying the restitution, and also get a criminal record and possibly some other penalty (community service? probation? jail?). Financially, at least under the theory that time is money, it makes more sense to pay the restitution and move on with your life.

On the other hand, for some people time isn't money. If you don't have a job, if you don't have a child at home to care for, maybe your time isn't worth much. Maybe it's worth it to come to court as many times as it will take.

But what considering it in some light other than financially? What about ethically? Do we have an obligations, either as defense attorneys or as hypothetical defendants, to say, "No, you can't just falsely accuse someone and expect them to hand over their money?" Does the prosecutor's office have some obligation to say, "Sorry, we'll punish people for their crimes, but we can't be a collection agency; If you want your money, take him to court?" Maybe that would put a stop to frivolous criminal complaints that are really just an effort to extort money from ex-friends, ex-lovers, and ex-business partners.

But, going back to the financial consideration... is jail ever worth it? How much would you have to be paid to take, let's say, a year in jail? How much you would you pay to buy your way out of jail? Would you be willing to pay more or less if you knew you didn't really "do it," whatever it was that was getting you sent to jail in the first place? Is paying restitution to your accuser any different that paying legal fees or court fees?

Thoughts people, let's hear 'em!

10 comments:

  1. I know this will surprise you Blondie, but I don't have a criminal record, so if I were the defendent in WotL's scenario I would take the deal because it would guarantee that my record stays clean.

    I imagine I'd be seething with anger at the lying scumbag who accused me, and therefore tempted to fight to the bitter end, but that would be foolish pride.

    I've been involved indirectly in several civil suits, and the key to making sane decisions in such suits is to remember that you should be making business decisions. If your lawyer says he can guarantee a win for $100,000 and your opponent offers to settle for $50,000, you take the settlement. Sure, it sucks to pay a lying scumbag for telling a successful lie, but the smart thing is to suck it up, pocket the $50,000 you saved, and get on with running your business.

    Same thing here. Pay the money, get on with what you were doing with your life before this BS happened.

    As for how much money it would take for me to spend a year in jail, that would depend on the kind of jail. I'm a computer consultant, so a year in a country club white colar jail with conjugal visits might be worth it to get $250K. A year in a maximum security pound-me-in-the-ass prison (that's for Not Guilty) would probably not be worth it for any price. They say supermax is even worse, but being isolated in my cell for 23 hours a day doesn't sound too bad, considering the kind of people they put in prisons; but it would cost more than the country club.

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  2. I'd pay $1K to get the case dropped, but wouldn't willingly do time for money. Prison changes people, rarely for the better.

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  3. I'd pay the Grand to get the charges dropped and no record. To get me to do a year in prison will take a lot of money. I used to work in a "Medium/Max" prison for 3 years and though there were assaults, extortion, prostitution, corruption, etc. ass-rape was a rarity. So to get me to do a year in prison and carry around a felony conviction would take about 2 million (a million just doesn't go that far) after taxes.

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  4. Blonde justice asked, "Do we have an obligations, either as defense attorneys or as hypothetical defendants, to say, "No, you can't just falsely accuse someone and expect them to hand over their money?"

    Part of me is still idealistic enough (although, going on three years practicing law, my idealism begins to dry up) that we DO have an obligation to fight such injustices. Isn't that supposed to be why we are lawyers in the first place? To help "right the wrongs" of the world.

    That said, most of my practice is civil litigation, and I often find myself saying, "I agree with you that this situation is unjust or unfair. However, you can pay me $XXXX amount of money to fight for you, or you can pay the other party $XXX amount of money to make the situation go away. And, if I fight for you, there is not guarantee we will win. You could be out $XXXX in legal fees, and still have to pay $XXX to the other side...

    I have occasionally had situations where I have felt the circumstances were so unjust, that I fought for my client anyway, charging them far less than I would normally, simply because I saw the other side as trying to manipulate the system - sometimes, someone has to stand up for the side who is right, and not just for the side who has enough money to pay...

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  5. I actually found myself in this exact situation as a defendant. I looked over the arrest report, saw deliberate falsehoods in it, and said to the public defender "this isn't what happened!"

    He said "I'm recommending you take a pre-trial deferment. But if you agree, I don't want you going in there and telling the judge 'this isn't what happened.'"

    I considered and decided that if I were a juror, I might have a hard time believing the true story - my own. Also, I wasn't sure I wanted to be put on the stand in my own defense, and I had no evidence in my defense other than my own testimony.

    So I took the pre-trial deferment, paid court costs and a number of other costs related to the case (totalling more than $1,000, although I didn't know it at the time I agreed to this), and stayed out of trouble for six months; and now I have no criminal record.

    I raged against the system a number of times, typically every time another unforseen expense came up. This was at a time when I was not easily able to afford the money. But I was glad to have an option that kept my record clean in exchange for what I felt amounted to a "no contest" plea.

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  6. This has nothing to do with this post but I've been watching these Dateline Predator shows and have some questions for you as a PD.

    The show documents men, who've been chatting with members of "Perverted Justice", posing as teenagers. They discuss sex and the teen invites them over, usually asking them to bring alcohol or drugs or double cheeseburgers.

    They open the door and come in. The "teen" is in another room claiming she is changing. They sit down and then are a door opens and in walks the anchor. He does not identify himself but I would imagine most of the guys think he's law enforcement.

    He asks them questions about their intent, the gifts they've brought, and most of the time gets them to admit that they were coming for sex. Only then does he inform them they're being taped for a segment on the news and that they're free to leave.

    When they do, they are met outside by cops who've been watching their confession via camera. Besides entrapment which I assume is not an issue as this has been done successfully for the past years, isn't their some problem with the perps assuming their talking to law enforcement and making these confessions. They all sit down and talk, thinking they aren't free to leave. What about Miranda?

    I imagine the prosecutor's have enough to go on without the confessions, but still the whole thing is a tad creepy. (And yes, men who have sex with teens are creepy too, but...)

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  7. I would pay the money and avoid prison. When I was younger, I remember watching LA Law and B.Bracken saying, "Avoid Court at all cost, strange things happen in Court."
    It holds true in practice. Every lawyer should do the nefarious calculus with his client and weigh the cost and benefit of having a case tried. The cost of losing iS a record for theft and prison time. The benefit is attorney fees and costs, greater than $1000, and a clean record.
    As a side note, A local retailer is paying a security firm in my building $300, per person, to check the backgrounds of summer workers at their store. These workers are there for maybe 15 weeks stocking shelves for $7.50 and hour. Any criminal record and there application is rejected.

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  8. Everybody has their price...I don't actually know mine, but my agent does; however, yes, it's an interesting question.

    The English crims have a saying "if you can't do the time, don't do the crime", and that sounds like pretty good advice to me. Of course, if you are into violent prison sex and extreme forced bonding, it's probably fine.

    This obviously is a question about motive: what Y factor / reward would make you do act X? I have a (extremely distant) relation who is pretty much a down-and-out, small-time thief, living in a small seaside town in the UK.

    He has a modus operandi to get off of the streets every September: he'll walk into a clothes store, lift a dozen garments off of a rail and just plain walk out with them.

    He waits to be accosted by store security: if he doesn't, he'll go back in and steal some more.

    When he eventually gets caught, arrested, goes to court and is sentenced, he gets six months to a year in one of Her Majesty's finest penal establishments. There he nests down for the winter, to be released in the English spring, fed, watered, fit, and newly-educated in socio-criminal ways. And so he goes through spring and summer, quite happy, until Fall arrives, when he...well, you get the picture.

    We used to laugh about him, but when he went into the British equivalent of Victoria's Secret and ran out wearing a bra, we kinda just put him to the back of our minds.

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  9. Okay, so I'm a big firm lawyer. I did this calculation on the internet the other day about the value of my time. My clients pay me something like $200 per hour. But that factors out to about $14 per hour when you add in the number of non-billable hours I work and the other expenses I incur just to keep the damn job. If I went to jail for a year and had a criminal record that involved a dishonesty crime, like embezzlement, I would lose my law license. Losing my law license would cause me to have great, insuperable hardship in repaying my student loans. Viola! The student loans become dischargable in bankruptcy. I earn over $100 thousand dollars for going to jail for a year, which happens to be more than my current salary. So what if I end up a bagger at the grocery store for the rest of my life? I'm free of the damn debt! What a relief. Not that jail is a cakewalk. But at least it's just criminals climbing up my ass, and not some evil power-mad partner at the firm.

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  10. You bill $200 an hour but only take home $14? That's pretty damn pathetic if you ask me. An associate should make about 1/3 of their billable time (if you bill $400,000 a year for your firm, you should make $125,000-133,000). If you have your own practice, you should take home 50-60% of your total billings.

    You math is wrong unless you're counting commuting time, lunch time, jacking off time, etc. and expecting to make $200 for billing it.

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