Chevelle Nesbeth was nineteen when she was arrested at John F. Kennedy International Airport, last year, for smuggling about 1.3 pounds of cocaine into the United States. At a boyfriend’s request, she had visited Jamaica, where she was born. Friends there, who had purchased her round-trip airline ticket, asked her to bring two suitcases to someone in the U.S. The drugs were in the handles of the luggage. She said she didn’t know they contained drugs, but there was enough evidence to contradict her story beyond a reasonable doubt. A jury in a Brooklyn federal district court convicted her of felonies for importation and possession of cocaine, with intent to distribute.
Nesbeth has lived in this country with her mother since 2008 and is a U.S. citizen. She has attended college since 2013—including for the year and five months since her arrest. (She was released on a fifty-thousand-dollar unsecured bond, which obligated her to pay that amount if she didn’t appear in court, and she fully complied with the terms of her release.) Now twenty-one, she expects to graduate next year with a sociology degree from Southern Connecticut State University, in New Haven. She switched from studying education because her felony conviction makes it unlikely that she will be able to become a teacher, as she had planned.
Last week, Senior District Judge Frederic Block drew attention by giving her a sentence without time in prison, though federal sentencing guidelines pointed to a term of thirty-three to forty-one months behind bars. Block wrote in his opinion, “Her crimes were certainly a marked deviation from an exemplary law-abiding life; she has worked in meaningful jobs; she has a record of prior good works counseling and tending to young children; she apparently was under the influence of her boyfriend, and there is no evidence that she was even to be paid for her crime or was motivated by financial gain.”
A headline in the New York Post responded crankily, “Woman gets off easy for smuggling $45K of cocaine.” The paper followed up with an editorial headlined “Brooklyn judge attempts to rewrite laws with an outrageous wrist-slap for drug felon”—perhaps overlooking the fact that federal sentencing guidelines have been advisory rather than mandatory since a 2005 Supreme Court decision, and that they clearly allow a judge to tailor a sentence in light of other factors.
Block explained that he had imposed a year of probation, with two special conditions: six months of home confinement (“to drive home the point that even though I have not put her in prison, I consider her crimes to be serious”) and a hundred hours of community service (“in the hope that the Probation Department will find a vehicle for Ms. Nesbeth, as an object lesson, to counsel young people as to how their lives can be destroyed if they succumb to the temptation to commit a crime, regardless of their circumstances”).
But the bulk of his opinion—the reason federal judges throughout the country have been sending it to one another as a cutting-edge view on an important issue in sentencing—is about why he “rendered a non-incarceratory sentence.” He wrote that it was largely “because of a number of statutory and regulatory collateral consequences she will face as a convicted felon”—restrictions that the federal government, as well as every state government, imposes on anyone convicted of a crime, but especially a felony. A broad range of the restrictions, he said, “serve no useful function other than to further punish criminal defendants after they have completed their court-imposed sentences.”
Block asked the U.S. Attorney’s office and the Federal Defenders of New York, which represented Nesbeth, to provide him with a list of the collateral consequences that she faces as a convicted felon. The government identified what it described as the “handful” that are “potentially relevant.” The loss of a driver’s license is the least onerous. She is also ineligible for student grants, loans, or work assistance for two years, and banned for life from receiving food stamps and Temporary Assistance for Needy Families, though Connecticut could grant her an exemption. She and her family can be denied federally assisted housing for a “reasonable time,” and she cannot be issued a passport until her probation is finished, which matters to Nesbeth because, as her lawyer told the judge, her “father, grandmother, and extended family all reside abroad.”
The judge recounted that federal law imposes considerably more than a handful of consequences, “nearly 1,200 collateral consequences for convictions generally, and nearly 300 for controlled-substances offenses.” Nesbeth’s counsel, Amanda David, of the Federal Defenders, said federal laws will make it difficult for her client to become an educator because they provide money “for background checks of all employees of educational agencies,” and a conviction for a drug felony “can be used as grounds for denying employment for potential employees who want to be involved in providing care to children under age 18.” David also reported that Connecticut automatically bars anyone from getting a teaching certificate for five years after being convicted of a drug felony.
David’s memo to the judge about collateral consequences began with a quotation from Michelle Alexander’s influential book “The New Jim Crow: Mass Incarceration in the Age of Colorblindness.” David is concerned that its thesis will apply to her client. Alexander writes, “Many of the forms of discrimination that relegate African Americans to an inferior caste system during Jim Crow continue to apply to huge segments of the black population today—provided they are first labeled felons. If they are branded felons by the time they reach the age of twenty-one (as many of them are), they are subject to legalized discrimination for their entire adult lives.”
The main conclusion of the judge’s opinion is that, while the law allowed him to take account of the civil penalties when he sentenced her, there was nothing he could do to protect her from them. He joined criminal-justice experts in encouraging Congress and state legislatures “to determine whether the plethora of post-sentence punishments imposed upon felons is truly warranted,” and suggested that they do the country “more harm than good.” He didn’t say so, but for many legislatures that would mean carefully assessing these punishments for the first time. As the criminal-justice scholar Jeremy Travis wrote, in 2002, legislatures have often adopted collateral consequences in unaccountable ways: “as riders to other, major pieces of legislation,” which are “given scant attention.” They are, Travis said, “invisible ingredients in the legislative menu of criminal sanctions.”
The judge made clear why the severity of collateral consequences—authorizing discrimination in education, employment, housing, and many other basic elements of American life—means that anyone convicted of a felony is likely to face an arduous future. This predicament has been called modern civil death, social exclusion, and internal exile. Whatever it is called, its vast array of penalties kicks in automatically with a conviction, defying the supposedly bedrock principle of American law that the punishment must fit the crime.
Lincoln Caplan, a former New Yorker staff writer, is a senior research scholar at Yale Law School and the author of five books about the law.
By Lincoln Caplan - The New Yorker/June 1, 2016