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.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!