Negotiating Prison

From the New York Times, a fascinating article about “prison consultants” and how they can help people heading to prison with sentencing for white collar convictions.

You’d think that the lawyer would be helping the client with sentencing. But that’s not always how things work, according to author Jack Hitt. “A lawyer is your legal guide to staying out of prison,” Hitt writes, “but once that becomes inevitable, a prison consultant is there to chaperone you through the bureaucracies that will eventually land you in your new home, easing your entry into incarceration — and sometimes even returning you to the outside, utterly changed.”

Hitt points out that the emergence of prison consultants is in part because of the prominence of plea bargaining in our system today:

Almost everyone facing charges is forced to plead guilty (or face an angry prosecutor who will take you to trial). In 2021, 98.3 percent of federal cases ended up as plea bargains. It’s arguable that in our era of procedural dramas and endless “Law & Order” reruns, speedy and public trials are more common on television than in real-life courthouses. What people … have to deal with as they await sentencing is a lot of logistics.

The idea of a prison consultant might conjure an image of an insider broker or fixer, but they’re really more like an SAT tutor — someone who understands test logic and the nuances of unwritten rules. Yet prison consulting also involves dealing with a desolate human being who has lost almost everything — friends, family, money, reputation — and done it in such a way that no one gives a damn. So they’re also a paid-for best friend, plying their clients with Tony Robbins-style motivational insights, occasionally mixed with powerful sessions about the nature of guilt and shame.

Apparently some of the parents who pled guilty in the Varsity Blues scandal used prison consultants. (Of course they did.) Prison consultants like Justin Paperny advise clients to think of their interactions with the sentencing judge as opportunities to tell their story–not to proclaim their innocence, importantly, but to set forth a narrative of taking responsibility and seeking to become a better person:

Many lawyers send their clients into this interview with the standard legal advice to say as little as possible and limit the damage — good advice during an arrest or even in the courtroom. “But this is the most important interview the defendant will ever have, and you’d be stunned at how many defendants do not prepare,” Paperny said. “This is a chance for you to change the narrative.”

Changing that narrative looks a lot like what we might teach in negotiation around figuring out how to frame your communication to be persuasive to the other side. Rather than just assemble a list of requests or insist on one’s innocence, the consultant recommends that clients write out “a full life story in the form of a letter”:

[T]hen rewrite it with editors working through every line, then ask you to read it over and over until, eventually, you sit down for a mock interview. By the time the officer is conducting the real interview, the story he hears is a full autobiography with a beginning, a middle and an end. And somewhere in there is this speed bump in the narrative — your crime.

Hugo Mejia, who pled guilty to crimes related to money laundering and Bitcoin, hired Paperny’s firm to assist with Mejia’s transition to prison. Mejia worked on his letter all spring in preparation for a pre-sentencing interview in June. After numerous drafts, he ended up telling a complex, layered story that “hints at a rehabilitation that has yet to fully manifest”:

… [H]ow the letter handles the present tense is the most vivid transformation. All the self-exoneration has been slyly edited out. The first-person confessional tone is searing. “I write this letter feeling humiliated and heartbroken,” Mejia begins. “I know now that I crossed a red line that exists for important reasons. At first, exchanging cash for Bitcoin seemed legitimate. I see now that I was wrong.” He closes by addressing the judge directly: “It was important for me to show you who I really am. I accept full responsibility for my action and will never return to your courtroom as a criminal defendant.”

To learn more about Paperny (he’s a convicted felon, as are all twelve of the consultants employed at his firm), check out this interview.

author

Jen Reynolds

Jen Reynolds is an expert in the area of dispute resolution. Professor Reynolds received her law degree cum laude from Harvard Law School, a master's degree in English from the University of Texas at Austin, and a bachelor's degree from the University of Chicago. While at Harvard, Professor Reynolds served… MORE

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