Many defendants focus exclusively on only one issue in their case – Am I going to jail? If there is even a possibility that this question may be answered affirmatively, follow-up issues concerns the length of the sentence and the facility where it may be served (e.g., state prison vs. county jail). What often gets lost in the discussions concerning this aspect of a criminal case are the collateral consequences of sentencing.
Collateral consequences are other things that happen to someone with a felony conviction that have little to do with jail or prison time. These consequences follow a defendant upon release from custody, and can affect virtually every aspect of their life. A Federal Judge in the Eastern District of New York just wrote a 42-page opinion concerning collateral consequences that should be required reading for every trial judge (Federal and State) in the United States.
Chevelle Nesbeth, the defendant and a college student from Connecticut who apparently had no meaningful prior criminal record, was entering the country at Kennedy Airport. She was coming from Montego Bay, Jamaica. In a random bag inspection, customs agents noticed what they viewed as unusually dense handrails on her suitcases. Further inspection revealed approximately 600 grams (or 2 1/2 pounds) of cocaine, with an estimated street value of $45,000. Nesbeth elected to proceed to trial, arguing that she received the bags from friends and knew nothing about the drugs. The jury did not believe her, and convicted her of importing drugs and possession with intent to distribute. Under the Federal advisory sentencing guidelines, Nesbeth faced a sentence including, among other punishments, a custodial term of 33 to 41 months.
United States District Judge Frederic Block sentenced Nesbeth to a year of probation with six months of home confinement and 100 hours of community service. Block explained his rationale for this sentence in his lengthy opinion. He observed that there are over 50,000 Federal and State statutes and regulations governing the conduct of criminal defendants which have nothing to do with, but remain in place after, incarceration. These are things that follow the defendant after they leave custody, and can include loss of a driver’s license, denial of certain government benefits, denial of public housing, and loss of eligibility for certain forms of financial aid, grants and loans for college students. Judge Block believed that given the facts and circumstances of Nesbeth’s case, the collateral consequences she would confront were sufficient punishment
Other collateral consequences which did not impact directly on Nesbeth at this stage of her life, but which she may confront in the future, are loss of or ineligibility for a professional license. This is the most obvious collateral consequence for doctors and other health care professionals convicted of health care claims fraud, or some other type of insurance fraud. Also, private employers and landlords frequently conduct background checks on prospective employees and tenants geared toward revealing felony convictions that could result in the denial of employment or a place to live. (If you have a New Jersey conviction, you should learn whether it can be expunged.)
Ideally, we expect people to emerge from the experience of a criminal case, which may or may not include prison time, as having reformed their conduct and with the desire to move forward as positive and productive members of the community. But collateral consequences, many of which are unknown to judges and attorneys, place an array of restrictions and roadblocks on what a convicted felon can do going forward. This almost certainly increases the likelihood of recidivism and reentry into the criminal justice system.
The media coverage of this case was interesting. Some of the more conservative media outlets opined that Nesbeth had “gotten off easy”. They also criticized Judge Block for what they viewed as conduct amounting to legislating from the bench, as opposed to simply imposing a term of incarceration consistent with the advisory guidelines. Judge Block, on the other hand, was quoted in 2012 as saying that he was in the DGS (don’t give a s___) phase of life, and that he now felt free to do what he viewed as correct.
Those critical of Judge Block’s sentence need to consider four things. First, he noted that Nesbeth’s criminal conduct was severe. He did not view what she did as a minor offense. Second, the advisory sentencing guidelines are just that – advisory. A Judge can deviate from them in the appropriate case. Third, Nesbeth, who is young, has to deal with the collateral consequences of a Federal felony conviction for the rest of her life. Fourth, and as the Judge noted, there are over 50,000 collateral restrictions on convicted felons, and most lawmakers and criminal justice professionals do not even know what they all are. Perhaps its time for Congress and the State legislatures to review these restrictions, and determine whether they do more harm than good.