The attorney/client relationship. A metamorphosis behind bars

Guglielmo Gulotta
Lawyer, Psychologist,
Professor of Forensic Psychology
of the University of Torino

Introduction

1. One of the most common difficulties a lawyer encounters in his client relationships during the conviction-imprisonment period arises from the fact that the former normally deals with the latter in the same way that he dealt with him previously. The truth of the matter is that the prison environment changes the psychology of the client, who then finds himself not only in need of legal assistance: not only is he compelled to cope with problems outside of prison life, but he may also be pressured into having to cope directly with prison itself. For the lawyer this means that, within the legal frame of reference, he must have a knowledgeable understanding of the psychological change that his client has undergone. For example, the client, who had formerly been reasonable, co-operative and dependent on his lawyer, can become uncooperative, or so extremely demanding and insistent that his requests can appear absurd or irrational, if the lawyer fails to take into account to what extent confinement has changed him.

In his relationship, the lawyer could then make the mistake of perceiving this change in his client’s behavior and attitude uniquely as a sign of mistrust in the lawyer, stemming from the fact that the client must serve out a prison term.

The lawyer as a counselor

2. In these cases, we understand how accurate were the observations of a famous New Jersey Supreme Court Magistrate, who said that being a lawyer means being a sort of wise counselor able to give disinterested advice to people in need of judicial help in times of crisis.

According to See Vanderbilt (1954), good counseling does not necessarily imply what books say about law, but has to merge the principles of law with the way law operates in every aspect of our daily lives. This means that good counseling is also built on a thorough understanding of human nature.

Counseling’s next step is being able to forecast law trends.

Based on these conditions, in the following pages we shall examine incarceration-induced stress and the different types of deprivations the client suffers as he experiences imprisonment and the psychological problems stemming from life behind bars. Lawyers would do well to be more sensitive to client needs by taking into account the realities of prison life.

3. Kurt Lewin (1951) notes that for human-need satisfaction and psychological survival there must be a balance between the forces that shape one’s environment. As these forces fluctuate, a new level of psychological balance is required. Rapid increases in changes test one’s capacity to cope, and without emergency resources helping an individual maintain the necessary psychological balance to face abrupt change, break-down may ultimately ensue.

Few men exist independent of significant others, and, under stress, most men turn to friends and family for support.

In situations of environmental abruption, which is typical of detention, people suffer from feelings of lack of control. Those who make this rapid transition smoothly are characterized by "stability zones" or "certain enduring relationships that are carefully maintained despite all kinds of other changes." (Toffler, 1970). Also, during times of physical threat a "shrinking phenomenon" (Bahnson, 1964) occurs; or the new situation is perceived exclusively or predominantly in terms of the special adjustment difficulties it poses.

Incarceration-induced stress reallocates an individual’s "free world" perspective. A nagging wife or an overprotective mother may appear as last links with survival, or a brother in a distant city may be expected to act as if he lived next door. Losing control of life in this way comes as quite a shock to an adult. It can lead to all kinds of reactions: anger, frustration, bewilderment, agitation, feelings of hopelessness, or depression (Cooke, Baldwin, Howison, 1990). The first telephone call, and all conversations with those still in the community, are major events. Waiting for a visit may seem an excruciating eternity.

A short visit can determine frustration, especially after a period of separation. It means that all the thoughts and ideas of some weeks have to be condensed into a short conversation. A man may be dependent on individuals in the community for bail funds, speaking with his attorney, providing information about his case, communicating with significant others, commissary money, clothing, etc. Community support may be a "stability zone" softening the psychological impact of confinement. Rejection or its threat can be devastating, making an individual sensitive to abandonment cues. In addition, problems which cause difficulties in any family, can become harder in the prison environment. Jail poses rapid role transition, changing civil role relationships which affect the way a man views and values himself. Arrest and detention decrease a man’s self-image, causing him to no longer see himself as a powerful or potent figure in his new world (Toch, 1975).

Increased dependency on others reduces one’s status, diminishing his sense of competence or his "feeling to change his environment, or control his world, so that the world will satisfy his needs" (Lester, Lester, 1971).In this situation, maintaining control, competence and being able to take a manly stance, run headlong into one’s dependence on community ties. This means that one coping requirement mobilized by jail (the need for significant others) gives rise to coping problems in another sphere (self-esteem in a dependency situation).

Jail generates further negative feedback regarding a man’s self-image. The actions and decisions of criminal justice agents during trial can be interpreted as attacks on a man’s credibility. Information from criminal justice sources can be viewed as implying that one is a social or societal liability. Hence, for the prisoner this means that the lawyer can become the most significant other.

4. Such deprivations, as accurately noted by Sykes (1958) are of different types: a) deprivation of liberty, b) of goods and services, c) of normal sexual relationships d) of autonomy, e) of security.

A) The individual’s movements are restricted. This is far less serious than the fact that imprisonment means being cut off from family, relatives and friends, not as in the self-isolation of a hermit or misanthrope, but in the involuntary seclusion of the outlaw. Visiting and mailing privileges partially relieve the prisoner’s sense of isolation - if someone visits or writes him, provided this arrangement be approved by prison authorities.

Not only is isolation painfully depriving or frustrating in terms of lost emotional relationships, of loneliness and boredom, but the most painful part of imprisonment is that confinement represents the deliberate, moral rejection of the criminal by the free community. Moral condemnation, however, symbolizes society’s reaction which transforms his offense into the punishment of being cut off from his usual relationships.

It has been claimed that many criminals identify with a criminal subculture, and not with conforming society, so that society’s moral condemnation, rejection, or disapproval do not affect them; being criminals, they are indifferent to the penal sanctions of a free community.

This can be true for a small number, such as the professional thief described by Sutherland (1937) or the psychopathic personality delineated by William and Joan McCord (1956). For most prisoners, neither alienation from the law-abiding nor involvement in criminal activity can eliminate the threat to a prisoner’s ego posed by rejection.

B) True, the prisoner’s basic needs are met; he receives adequate medical care, and can exercise; but a standard of living based on minimum health-sustaining consumption levels - calories per day, recreation time, cubic yards of space per individual - is not enough to offset the individual’s sense of deprivation.

The prisoner wants, or needs, not only the necessities of life, but also its amenities: cigarettes and liquor as well as calories, interesting food as well as sheer quantity, individual as well as adequate clothing, individual furnishings as well as shelter, privacy as well as space. The "rightfulness" of the prisoner’s feeling of deprivation can be questioned. Also, the objective reality of the prisoner’s deprivation - did he actually suffer economic-position loss? - can be viewed with skepticism, as previously indicated. The real issue is that legitimately or illegitimately, rationally or irrationally, the inmate population defines its present material impoverishment as a painful loss.

In modern western culture, material possessions are important in the individual’s conception of himself; thus to be stripped of them impinges upon one’s personality. This is particularly the case when poverty is not a blind stroke of fate or a universal calamity.

C) If the inmate is rejected and impoverished because of his imprisonment, he is also figuratively castrated by his involuntary celibacy.

Writers have suggested that men in prison have a decreased sexual drive, therefore sexual frustrations are less than what they might first appear. Reports of diminished sexual interest are largely confined to accounts of men in concentration camps or similar extreme situations where starvation, torture and physical exhaustion reduce life to a struggle for survival or leave the captive sunk in apathy. In Italian prisons, these factors are not sufficiently at work as some writers have noted, as the prisoner’s access to mass media, pornography and similar stimuli serves to keep alive his sexual impulses. A recent law proposal, wich was ultimately repealed, stated that convicted person could spend a few "love hours" with wifes or girlfriends in suitable surroundings. Such a dispensation could help preserve husband-wife relationships, together with self-esteem and a healthy sex life.

Although the aspects of physiological sexual frustration is important, psychologically, a lack of heterosexual relationships can be even more serious. A total male society generates anxieties concerning one’s masculinity whether or not one is coerced, bribed or seduced into an overt sexual liaison. Latent homosexual tendencies may be activated without actual behavior arousing strong conscious or unconscious guilt feelings. In the tense prison atmosphere with its known perversions, its importunities by avowed homosexuals, and its constant references to the problems of sexual frustration by guards and inmates alike, a prisoner’s self-image - his very status as male - is called into question. If an inmate engages in homosexual behavior, as a rare act of sexual deviance under the pressure of mounting physical desire, the psychological onslaughts on his ego-image will be particularly acute.

Deprivation of heterosexual relationships heighten not only problems stemming from sexual frustration, but also poses a further threat to the prisoner’s self-image. The inmate is shut off from the world of women, which by its very polarity gives the male world much of its meaning. Like most men, the inmate looks not only within himself for his identity, but also at what he sees himself to be through the eyes of others. With half his audience denied, and without the full reality of his self-image, the latter risks becoming half complete. The prisoner’s looking-glass self, to use Cooley’s phrase, is only that portion of the prisoner’s personality which is recognized and appreciated by other men. It is a partial identity that is made hazy by the lack of contrast.

D) The inmate is subjected to rules and commands designed to control his behavior, i.e., loss of autonomy. To the casual observer, areas in which self-determination is withheld, i.e., hours of sleeping and eating are relatively unimportant. Perhaps the inmate is not much worse off than the individual in the free community who is regulated by the iron first of custom. Perhaps extensive control by the custodians provides a welcome escape from freedom, and prison officials supply an external Super-Ego, reducing the anxieties brought on by deviant impulses. But, from the inmate’s viewpoint, the heavy-handedness of the officials’ control often proves to be most galling. Regulation by custom is felt far differently than regulation by bureaucratic personnel, and few prisoners welcome having the latter check their aberrant behavior. A behavior they would like to curb, but cannot. Most prisoners, in fact, express an intense hostility toward their own dependence on the decisions of their captors, their restricted ability to make choices, restrictions of physical freedom, possession of goods and services, and heterosexual relationships.

The loss of autonomy experienced in prison is not power freely given by the ruled to the rulers for a limited and specific end. Rather, it is total and imposed, and for these very reasons less bearable.

Fostering inmate ignorance by withholding explanations is a matter of calculated policy. Providing explanations, in fact, implies that those ruled have a right to know, further suggesting that if explanations are not satisfactory the rule or order will be changed. This, however, directly contradicts the theoretical power relationship between inmates and prison officials.

The criminal with an alternative viewpoint attacks the validity of the law itself; thus, he is no longer simply a man who has broken the law. The custodians’ refusal to give reasons for many aspects of their regime can be seen in part as an attempt to avoid such an intolerable situation.

E) Society forces the criminal to associate with more than a thousand other criminals for years on end. The individual prisoner is thrown into prolonged intimacy with other men who in many cases have a long history of violent, aggressive behavior. Such a situation proves anxiety-provoking even for the hardened recidivist. A New Jersey State prison inmate once said, "The worst thing about prison is you have to live with other prisoners."

For young offenders in their development stage, entering prison can have the very worst consequences. They, in fact, live in a reference-less situation, and as models they have only other offenders. This, in the long term, affects the way they will develop as adults (Cooke, Baldwin, Howison, 1990).

The imprisoned criminal sometimes views his fellow prisoners as "vicious" or "dangerous", which may be unreasonable because the other inmates are men like himself, bearing the legal stigma of conviction. However, when a prisoner believes he will not attack or exploit weaker and less resourceful fellow captives, he is apt to view others with more suspicion. And if he is prepared to commit crimes in prison, he is likely to feel that others might also. Regardless of mutual aid and support in the inmate population, a sufficient number of outlaws within this group of outlaws deprives the average prisoner of a sense of security by living among men who can be reasonably expected to abide by the rules of society. True, a prisoner does not live in constant fear of being robbed or beaten; nevertheless, the constant company of thieves, rapists, murderers and aggressive homosexuals is far from reassuring.

The inmate is acutely aware that he will be "tested", that someone will "push" him to see how far they can go. Therefore, he must be prepared to fight for the safety of his person and his possessions. Failure proves him an object of contempt, and thus constantly in danger of being attacked because he is viewed as an obvious victim; one who cannot or will not defend his rights. Success proves him a possible target, for someone seeking to enhance his own prestige by defeating the man with a reputation for toughness. Both success and failure may provoke fresh attacks and no man stands assured of the future.

The prisoner’s loss of security arouses acute anxiety, not only due to violent acts of aggression and exploitation, but also by constantly calling on the individual’s ability to cope with such behavior, his own inner resources, his courage, his "nerve".

Conditions of long-term confinement compel a man to direct his attention and energies to the prison world’s society. Some men, conceiving "of the prison experience as a temporary break in their outside career" (Irvin, 1970), through living on the boundaries of the inmate social world, are aware of potential threats from other inmates and are cognizant of the need to follow the inmate code.

The major concerns of most inmates are personal security, reducing the rigors of imprisonment, and "doing time", which all require a clear definition of the boundaries between the prison world and the outside community. The inmate code implies "doing your own time", and that self-reliance be maintained in relation both to custodians and to members of the free community, of whom the lawyer is usually the only representative. The structure and location of most prisons limit the inmates’ view and facilitate demarcation.

From a psychological perspective, researchers have examined disorders which manifest themselves in conjunction with prison life. The monotony of life behind bars, in fact, determines a lack of stimulation. At the moment, there is no evidence that imprisonment damages general intellectual ability, but it does appear that inmates’ problem-solving capacity is affected (Cooke, Baldwin, Howison, 1990).

From the standpoint of psychopathology, Cooke, Baldwin and Howison (1990) noticed that prisoners are especially prone to anxiety and depression problems. Men in jail lack the usual means to cope with anxiety: "They may feel the tension rising, and being unable to understand, explain or cure it, they may shout at an officer or another prisoner, they may hit out, smash the cell or injure themselves" (page 61).

In terms of depression, the first five months in jail constitute the most critical phase (Serra, 1994). It is important not to forget that prisoners have few opportunities to talk, and have no chance to escape from their situation, or simply have fun (Cooke, Baldwin, Howison, 1990). Such a situation can prompt different emergencies, depending as it does on the interaction of surrounding factors (gravity of punishment, manner of detention) and individual factors (personality traits, specific cognitive patterns).

Serra distinguishes between:

1. Anxious depression - Its characteristics are: dysphoria, irritability, tension and guilt feelings.

2. Cognitive depression - Its characteristics are: dissatisfaction, self-devaluation feelings, hopelessness.

3. Vegetative depression - Its characteristics are a considerable loss of appetite and libido, and increased tiredness.

4. Classic endogenous depression - Its characteristics are mood variations during the day, early waking up in the morning, weight loss, irritability and tension.

Especially in the first phase of sentence-serving, and in correlation with the depressive feelings, tempted suicides and acts of self-injury can occur. They represent the most profound, alarming and confusing form of psychological disorder (Cooke, Baldwin, Howison, 1990; Serra, 1994). There are various reasons for this kind of behavior, but all are attributable to the restrictive and punitive aspects of jail life. Sometimes acts of self-injury, like cutting or burning oneself or taking a drug-overdose, gives the prisoner a feeling of relief from tension. "Although this is unusual, when someone has developed the habit of using self-injury to relieve tension, it’s difficult for them to break the habit" (Cooke, Baldwin, Howison, 1990, p. 64).

Another psychological circumstance possibly being able to influence the attorney/client relationship is the so-called "freezing syndrome". Being in jail, a previously unknown but now painful experience, engenders in the prisoner a state of "astonishment". Especially in the initial period of detention he remains motionless and idle, unable to do anything to help himself or those next to him. It can be imagined how, being in a condition of mental derangement and emotional anesthesia, he is unable to give his attorney useful information in terms of his own defense.

The case of a 36-year old man can help explain this situation. Accused of extortion and sent to prison, he stopped eating and remained in a continuous state of drowsiness, constantly expressing his disbelief over what had happened to him. "It’s impossible...there must be a mistake!" (Ferracuti et al., 1994).

Yet another disorder, called "innocence syndrome", can exert an influence on the attorney’s role and work. We know that detention can change the perception of reality, but sometimes, after a period in jail, the prisoner may review the events that determined his punishment. Clinical literature states that after his offense, a criminal develops defense mechanisms, such as "minimization", "rationalization" and "projection", that bring about a change in events perception, thus engendering a sense of innocence. It is easy to imagine the consequences for an attorney who is preparing his client’s defense strategy (Ferracuti et al., 1994).

The jail inmate is close physically and psychologically to the community, unlike the prison inmate. This fact, together with elements of pre-trail detention, engenders different "real world" problems for most men incarcerated in jails.

The experience of arrest, trial and conviction threatens the structure of a man’s life in two separate ways. First, he is taken out of orderly and familiar routines and put into unfamiliar and seemingly chaotic ones, where the ordering of events is completely out of his hands. One’s identity, personality system and coherent self-thinking processes depend on a relatively familiar, continuous and predictable stream of events. In the Kafkaesque world of the booking room, the jail cell, the interrogation room and the visiting room, the boundaries of the self collapse.

While this collapse takes place, the prisoner’s network of social relations is being torn apart. Private affairs are exposed, minor needs that must be met to maintain social relationships go unattended, bills not paid, friends no longer befriended, families not fed, consoled, advised, disciplined. In other words, roles cannot be performed. Unattended, the structure of the prisoner’s social relations collapse.

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