Proceedings After Trial in general
In general
Computer crime defendants are often found guilty.FN73 Therefore, it is important that the defense attorney do all he or she can to assure that in the event of a guilty verdict the client does not go to jail or prison. It is also important to consider the amount and timing of any restitution or any fines levied on the defendant.
The first step in preparation of this part of the case is to develop a clear strategy to establish the defendant's worthiness for a minimal punishment, and the value to society of the specific type of sentence urged by the defense attorney to the court. Frequently computer criminals have no prior record, a good history of work, numerous friends and social contacts, and unusual skills and talents.FN74 All of these characteristics help convince a court that the individual standing before it deserves better treatment than a recidivist criminal.
In arguing it is not best for society to sentence the defendant to incarceration, it is important to be aware that jail sentences are not particularly effective in rehabilitating white-collar criminals, many of whom do not consider themselves criminals, and their attitudes are unlikely to change because of incarceration. In addition, where the defendant has been and can continue to be a productive member of society, it is socially costly to lose the defendant's earning abilities, especially where allowing a continuation of work would increase the funds available for restitution, taxes, and support of the defendant's family. Even a provision that the defendant serve nights and weekends on a work-furlough program is preferable, in many ways, to keeping the defendant in prison.
There are numerous arguments that can be made to establish the appropriateness of tailoring sentencing to the factual situation at hand. Where the defendant has merely followed industry standards, it is possible that the defendant would do more social good by giving lectures, about the history of his or her crime, to others in the industry than by spending time in jail teaching other criminals programming or systems analysis.FN75