In an Important New Opinion, Fed Judge Talks About “Collateral Consequences” of a Felony Record, & Declines to Give Prison SentenceMay 27th, 2016 by Celeste Fremon
In a remarkable 42-page opinion handed down in a New York federal court on Tuesday, U.S. District Court Judge Frederic Block explained why he had decided not to sentence a 20-year-old woman named Chenille Nesbeth to federal prison for trying to smuggle 602 grams of cocaine into the U.S. from Jamaica.
Instead of prison time, Block gave Nesbeth a year of probation and 100 hours of community service because, he wrote, the “number of statutory and regulatory collateral consequences she will face as a convicted felon,” many of them for the rest of her life, was punishment enough:
“I am writing this opinion because from my research and experience over two decades as a district judge, sufficient attention has not been paid at sentencing by me and lawyers – both prosecutors and defense counsel – as well as by the Probation Department in rendering its pre-sentence reports, to the collateral consequences facing a convicted defendant.’ And I believe that judges should consider such consequences in rendering a lawful sentence.
A FORM OF “CIVIL DEATH”
In explaining his actions, Block quoted from, among other sources, Michelle Alexander’s influential book, The New Jim Crow: Mass Incarceration in the Age of Colorblindness.
The effects of these collateral consequences can be devastating. As Professor Michelle Alexander has explained, “[m]yriad laws, rules, and regulations operate to discriminate against ex-offenders and effectively prevent their reintegration into the mainstream society and economy. These restrictions amount to a form of ‘civi[l] death’ and send the unequivocal message that ‘they’ are no longer part of ‘us.’”
This “broad range” of collateral consequences, Block wrote, “serve no useful function other than to further punish criminal defendants after they have completed their court-imposed sentences.” Moreover, many of these after-effects of a felony conviction, under both federal and state law, “attach automatically upon a defendant’s conviction.”
The effects of such collateral consequences, he said, “can be devastating.”
Justice advocates have been making similar point for years, but coming from a well-known federal judge the thesis was both startling and significant.
And case anyone reading failed apprehend his seriousness on the topic, in the pages that followed, Block provided a short course on the scope of those consequences, and on the deleterious affects that reach beyond the lawbreaker to his or her children, family and the community in general.
He noted, for example, that federal law imposes “nearly 1,200 collateral consequences for convictions generally, and nearly 300 for controlled-substances offenses.”
Under federal law alone, he wrote, a felony conviction may make an individual permanently ineligible for public housing, Section 8 vouchers, food stamps, student loans and more. Add to that the fact that most employers don’t want to hire people with a criminal record, and the chances of someone successfully integrating him or herself back into society is drastically diminished.
“The inability to obtain housing and procure employment,” Block continued, “results in further disastrous consequences, such as losing child custody or going homeless. In this way, the statutory and regulatory scheme contributes heavily to many ex-convicts becoming recidivists and restarting the criminal cycle.”
Despite the unusual nature of this week’s sentencing, Block was careful to point out that he was in no way letting Nesbeth off the legal or moral hook for the crime she committed.
“There is no question that Ms. Nesbeth has been convicted of serious crimes,” he wrote. “Her criminal conduct is inexcusable.”
As for the crime itself: it seems that Nesbeth took a trip to Jamaica “at the behest of a boyfriend.” Then, prior to her return, friends of the boyfriend gave her two suitcases and asked her to bring them to another person when she arrived back in the U.S. Evidently the drugs were in the handles of the suitcases. At trial, Nesbeth claimed that she didn’t know there were drugs in the suitcases.
The jury didn’t buy it—particularly since the “friends” had purchased her ticket.
Yet, it also came out in the trial, according to Block, that Nesbeth was to receive no payment or other monetary gain from acting as a courier. It seems she’d mostly done the whole thing for the boyfriend.
Even the U.S. Probation Department in their sentencing recommendation, urged that Nesbeth be given a 24-month sentence, which was at the low end of the federal sentencing guidelines for the crime of which she’d been convicted. Probation pointed to the fact that she was “a first-time offender, was enrolled in college, employed, and “has otherwise lived a law-abiding life and is at a low risk of recidivism.”
Probation went on to write, “the defendant is a college student and she has held internships working with young children as it was her original intent to become a teacher and eventually a principal. The defendant will be ineligible for grants, loans, and work assistance for a period of two years, the duration of her college career.”
She would also be unlikely to ever hold a job as teacher, or a school administrator, and other related professions that had originally been the focus of her education and ambition.
“A JUST PUNISHMENT”
At the end of his writing, in case anyone has missed the point, Block made it clear that he intended the opinion to be far more than simply an explanation for what some might perceive to be an unusually lenient sentence.
In specific, Block expressed the hope that his writing would cause other jurists to examine the issues he laid out:
“While consideration of the collateral consequences a convicted felon must face should be part of a sentencing judge’s calculus in arriving at a just punishment, it does nothing, of course, to mitigate the fact that those consequences will still attach. It is for Congress and the states’ legislatures to determine whether the plethora of post-sentence punishments imposed upon felons is truly warranted, and to take a hard look at whether they do the country more harm than good.
“Hopefully, this opinion will be of value to the bench and bar, and to all those who are committed to serving the ends of justice.”
There is, of course, no way to know for sure whether or not Block’s opinion will have an effect on the actions of other judges, yet Gabriel J. Chin, a professor at the University of California, Davis, School of Law, who was quoted in the NY Times story on Tuesday’s ruling, called the opinion “groundbreaking.”
“This is by some distance the most careful and thorough judicial examination” of collateral consequences in sentencing, said Professor Chin, who has written on the subject and whose work the judge cited in the opinion.
“It’s going to generate debate on a critical issue in the criminal justice system — the ability of people convicted of crimes to get on with their lives,” he said.
THE “DGS STAGE”
Block, who will turn 82 on June 6, was appointed to the federal bench in 1994 by President Bill Clinton, and is the author of a well received memoir called Disrobed: An Inside Look at the Life and Work of a Federal Trial Judge.
When doing publicity for the book, Block was asked by reporter David Lat of Above the Law, which case in his career he looked back on with the most pride, he pointed to a 2008 case involving two Egyptian-born men who were questioned for four hours after a cross-country flight in 2004. Block ruled that it was wrong to arrest the men solely because of their ethnicity. “…perceived ethnicity alone,” he wrote, “cannot give rise to reasonable suspicion or probable cause.”
During that same post publication period, Block told Larry McShane of the New York Daily News something that may have bearing on THE 2008 case and on this week’s decision.
“I’m at the DGS stage of life,” Block said to McShane
Then, chuckling, the judge—who was then a mere 78-years-old—translated for the reporter.
“Don’t give a s—. I don’t care what any of you say. I feel freed up to do what I really feel is the right thing.”