Pubdate: Thu, 26 May 2016
Source: New York Times (NY)
Copyright: 2016 The New York Times Company
Contact: http://www.nytimes.com/ref/membercenter/help/lettertoeditor.html
Website: http://www.nytimes.com/
Details: http://www.mapinc.org/media/298
Author: Benjamin Weiser

U.S. JUDGE, IN STRIKING MOVE, SENTENCES FELON TO PROBATION, NOT PRISON

A federal judge in Brooklyn, in an extraordinary opinion issued on 
Wednesday that calls for courts to pay closer attention to how felony 
convictions affect people's lives, sentenced a woman in a drug case 
to probation rather than prison, saying the collateral consequences 
she would face as a felon were punishment enough.

The judge, Frederic Block of Federal District Court, said such 
consequences served "no useful function other than to further punish 
criminal defendants after they have completed their court-imposed sentences."

The judge noted that there were nearly 50,000 federal and state 
statutes and regulations that imposed penalties on felons.

Those penalties - denial of government benefits, ineligibility for 
public housing, suspension of student loans, revocation or suspension 
of driver's licenses - can have devastating effects, he wrote, adding 
that they may be "particularly disruptive to an ex-convict's efforts 
at rehabilitation and reintegration into society."

The issue of collateral consequences has been considered by other 
courts, but Judge Block's 42-page opinion, with his call for reform, 
appears to be one of the most detailed examinations yet.

Judge Block's sentencing opinion was issued in the case of Chevelle 
Nesbeth, who was arrested last year at Kennedy International Airport 
after a search of her luggage turned up 600 grams of cocaine, court 
records show.

In the opinion, the judge said he considered her crimes to be serious 
and called her criminal conduct "inexcusable." But he also listed an 
array of consequences that she would quite likely face as a result of 
her felony drug convictions, like being ineligible for grants, loans 
and work assistance for two years, the duration of her college career.

He noted that the inability to obtain housing and employment stemming 
from a conviction often results in "further disastrous consequences, 
such as losing child custody or going homeless," and leads to many 
ex-convicts' "becoming recidivists and restarting the criminal cycle."

The judge's ruling does not create a binding legal precedent for 
other courts, but it is likely to contribute to the national debate 
about the criminal justice system.

Gabriel J. Chin, a professor at the University of California, Davis, 
School of Law, 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.

Ms. Nesbeth had claimed that she was given the suitcases by friends 
and was unaware they contained drugs. A jury was unpersuaded, 
convicting her of importation of cocaine and possession of cocaine 
with intent to distribute, the judge wrote. She faced a sentence of 
33 to 41 months under the advisory guidelines.

But in a hearing on Tuesday, Judge Block sentenced Ms. Nesbeth to one 
year of probation, to include six months of home confinement and 100 
hours of community service, and said he would elaborate on his 
reasoning in the full opinion.

Amanda L. David, a federal public defender representing Ms. Nesbeth, 
said of the ruling, "It's refreshing, really, to see a judge 
considering the ramifications that a lot of people don't even know 
about, much less consider, when they think about a person being 
sentenced." But even with the probationary sentence, Ms. David said, 
it was disheartening that there "are all these doors that are closed 
to her based on her conviction."

The United States attorney's office in Brooklyn declined to comment. 
But in a memo to the judge before sentencing, the office said the 
collateral consequences of Ms. Nesbeth's convictions were necessary 
given her "serious criminal conduct." Such restrictions, the office 
added, were "meant to promote public safety, by limiting an 
individual's access to certain jobs or sensitive areas," and "to 
ensure that government resources are being spent on those who obey the law."

In the opinion, Judge Block quoted from the work of the legal scholar 
Michelle Alexander, author of "The New Jim Crow: Mass Incarceration 
in the Age of Colorblindness."

"Today a criminal freed from prison has scarcely more rights, and 
arguably less respect, than a freed slave or a black person living 
'free' in Mississippi at the height of Jim Crow," she wrote in one 
section quoted by Judge Block.

The judge noted that Ms. Nesbeth, who was 20 at the time of her 
conviction and lived with her mother in New Haven, had been enrolled 
in college and was also working as a nail technician to help support herself.

Daniel C. Richman, a former federal prosecutor who teaches criminal 
law at Columbia, added that "however laudable it is for the judge to 
highlight this problem, his decision can't solve it, even for this defendant."

"As the judge himself has made clear," Professor Richman added, "the 
source of the problem is outside of his control, all these different statutes."

Indeed, Judge Block, who has served for more than two decades on the 
federal bench, said that while judges should consider such 
consequences at sentencing, it was for Congress and state 
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."
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