Prisoners are persons whom most of us would rather not think about. Banished from everyday sight, they exist in a shadow world that only dimly enters our awareness. They are members of a "total institution" that controls their daily existence in a way that few of us can imagine. "[P]rison is a complex of physical arrangements and of measures, all wholly governmental, all wholly performed by agents of government, which determine the total existence of certain human beings (except perhaps in the realm of the spirit, and inevitably there as well) from sundown to sundown, sleeping, walking, speaking, silent, working, playing, viewing, eating, voiding, reading, alone, with others. . . ." It is thus easy to think of prisoners as members of a separate netherworld, driven by its own demands, ordered by its own customs, ruled by those whose claim to power rests on raw necessity. -- Justice William Brennan, dissenting in O’Lone v. Estate of Shabazz, 482 U.S. 342, 354-55 (1987).

Tuesday, November 13, 2007

Felonious Associations

Jerry was a friend of mine in prison... I was perhaps his only friend it seemed at times.

He was 61 years old, sentenced to 33 months for tax evasion and bankruptcy fraud. His wife was sentenced to 27 months for the same. Their 12 year old daughter was forced to live in San Antonio with her elderly grandparents.

Jerry's parents died when he was young; he has two purple hearts from Vietnam, worked his way through college and basically built a life for himself from scratch. He was truly a self-made "old school" man. He was basically retired, enjoying life in southwest Florida while his wife continued to run the document imaging business that he built, when the FBI came knocking.

Based on a tip from a disgruntled employee, the feds accused him and his wife of diverting income from the business into his personal account to avoid paying taxes (about $100K over several years). The publicity of the investigation chased away vendors (who would no longer extend credit for inventory), customers and employees and the business was forced into bankruptcy. During the bankruptcy process, Jerry retrieved $50K worth of imaging equipment from the store warehouse that he claims belonged to him, not the business. In addition, $11,000 was given to her father, apparently from the business. The bankruptcy trustee had not been notified and a bankruptcy fraud charge was added to the indictment.

I have read the case in some detail as well as talked to Jerry and am pretty well convinced that he and his wife were innocent and the whole case was a very confusing misunderstanding. The fact is that their accounting was a complete mess (one document claims it took over 600 hours for the govt expert to sort things out) but the bottom line was that all checks written directly to Jerry from the business (which is not illegal) were accounted for in the business' income statements. (Ironically, even the government's witness admitted that on the stand.)

Jerry is a proud man who can by quite surly at times when his integrity is challenged. He apparently refused to take a misdemeanor plea deal (basically told the prosecutor to "go to hell" -- not a smart move) which would have required him to spend a year in prison (but they would not have prosecuted his wife) and instead went to trial, where both he and his wife were convicted and sentenced, leaving their child without parents. All of his assets had been seized and they used a public defender. He literally has not one penny to his name. The seized assets were used to pay the $61K withheld from the bankruptcy trustee and the $100K they claimed he owed in taxes.

Jerry will tell you he is the most innocent man in federal prison and he is quite bitter about the whole experience. His entire life has literally been turned upside down. He may very well be innocent, but he made so many classic strategic errors in his case, that the system just slammed him. There are a lot of lessons to be learned from his case, which I may write about later.

Jerry leaves prison this Thursday (Nov 15) to spend two months in a halfway house near his former home in Florida. His wife was released in June and now lives with her parents and daughter in Texas (at least, that is where she was as of last June). It is unlikely that they will get back together.

Jerry and I had discussed some ideas for how he could get his life back when he got out. After all, he was literally starting from scratch, without even the cash to put a deposit on an apartment or buy a car. We swapped business ideas and ways I might be able to assist him, including providing him with some transportation and perhaps some cash to at least get him on his feet.

Unfortunately, and this is the point of this post (although it has taken me a while to get here!), standard condition of supervision #9 states that "defendant shall not associate with any persons engaged in criminal activity and shall not associate with any person convicted of a felony, unless granted permission to do so by the probation officer."


What a stupid rule. Now, I understand why, in some cases, it might be a good rule. But, as is so common in the criminal justice system, the rules are so broad and sweeping that they end up doing more harm than good. I almost wonder at times if the government is intentionally setting up former inmates for failure by creating all these petty hoops to jump through.

The idea that Jerry and I cannot talk or even do business together is just ludicrous. I am in a unique position to help Jerry get back on his feet and I am forbidden to do so under threat of more imprisonment. What do they think we are going to do? Conspire to commit another crime?

This condition does have an exception: "unless granted permission by the probation officer." This exception originally made sense of the rule to me because I assumed, as with travel outside the district, that the goal is transparency and that permission is routinely granted as long as you make your PO aware of it. In other words, my PO routinely grants permission for me to travel outside the district... I just let him know where and when and he gives me a permission to travel document. I have no problem with that.

Why not the same with felonious associations? Why can't I simply tell my PO that Jerry and I would like to talk and maybe do business together so that he is aware of it and then he grants permission? Why is this so complicated? I would think that the courts would actually be in favor of anything that would help a former inmate get back on his feet. Unfortunately, my PO says that exceptions are only granted for special cases, such as family members or fellow employees/employers who are felons. Sigh. My PO is a good and reasonable guy and I suspect if it was totally up to him, he wouldn't care in my case, but since Probation Office policy will not approve it, he is compelled to enforce it.

It reminds me of the story of Jesus healing a man on the Sabbath (see Mark 3:1-6; Matthew 12:9-14; Luke 6:6-11). The Pharisees had their stupid little rules that had lost all sight of the underlying purpose of Ten Commandments. Jesus violated their rule in order to do good and they conspired to kill him for threatening the underlying system they had so carefully constructed.

In any case, I decided to discuss this matter with my PO last week. I told him (actually I sent him a fax) that I had a friend that was soon to be released to a halfway house and that I would at least like to pay his remaining special assessments so that when he was released he wouldn't have that hanging over his head. I asked if that was ok and what was the best way to do it.

He indicated that they didn't have a problem with that. I told him I was going to call the prison and talk to his case manager about the best way to do it. (I figured I would just send money to his commissary account via Western Union -- the fastest way to get money into an inmate's account -- and his case manager could take it out to pay the fine.) My PO said that would be fine... if the prison had any questions, just have them call him. Cool.

I have to tell you it was really weird calling the prison, having been an inmate there. Officer Sjuve (shoo-vay) answered the phone. Sjuve is probably the nicest CO in the camp. He normally is the CO on duty during visitation checking visitors in. He is very popular and well-liked because he treats all visitors with respect and courtesy, which the inmates appreciate.

He transferred me to Jerry's case manager who told me that it was too late to transfer money into Jerry's account in order to pay the fine; there just wasn't enough time given his imminent release. In any case, he said he can't just take it out of Jerry's account without Jerry's permission.

I told him he could tell Jerry that that was why I sent him the money.

He asked why I couldn't just tell him.

I said that I can't exactly call him up. (Inmates cannot receive incoming calls... they can only place calls.)

He said Jerry could call me, however. At this point I had only identified myself as a "friend" of Jerry's. I didn't feel like explaining that I was a former inmate there and that there is no way I would be added to Jerry's approved call list so I just said maybe it would be best to just send the money to the District Court and he agreed.

Thus, the final and best solution was to simply send a cashier's check to the District Clerk of Court, noting Jerry's name and docket number in the "memo" field. When Jerry gets to the halfway house, his case manager will be able to inform him that he has no remaining financial obligations.

I hope.

Since Jerry and I are forbidden from "associating" (which includes communicating), who knows?


Anonymous said...

I feel sorry that you can't help your friend. The laws sometimes are just plain stupid. I've been reading your blog for a long time now. I miss your inputs when you don't write as often. I enjoyed your writings from prison. It was very interesting, specially very human. I hope your friend can get the help he needs.

Anonymous said...

I agree that certain rules are developed to deter criminal activity, but some of these rules don't apply to white collar or small time offenders (non-violent administrative) but still haunt any and all ex-felons. It is amazing to me that this country with such a record deficit and poor future economic opportunities would continue to justify and enhance people (ex-felons) to be dependant on the wellfare system. It really boggles my mind that the mandatory sentences produce such a huge burden on tax payers. There has to be an explanation to such policies, control, power, justification, excuse for funding...and the list goes on...

Federal Judges are bound by the point system, so they have to give the min mandatory sentence even for a borderline white collar issue...I believe that its a way to move around people and money via federal funding.