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June 4, 2009

"Judge jails woman until baby is born"

A helpful reader pointed me to this fascinating article that bears the headline that is the title of this post.  Here are the particulars:

A woman from the African nation of Cameroon could give birth in a federal prison because she is HIV-positive. U.S. District Judge John Woodcock last month sentenced Quinta Layin Tuleh, 28, to 238 days in federal prison for having fake documents. Woodcock said the sentence would ensure that Tuleh’s baby, due Aug. 29, has a good chance of being born free of the AIDS virus.

Both the federal prosecutor and the defense attorney urged the judge to sentence Tuleh to 114 days, or time served, according to a transcript of the sentencing hearing. Woodcock instead ignored the federal sentencing guidelines and calculated her sentence to coincide with her due date.  Federal prosecutors have appealed the sentence to the 1st U.S. Circuit Court of Appeals in Boston. The court has agreed to deal with the case on an expedited schedule and could hear oral arguments in late July.

Woodcock told Tuleh at her sentencing on May 14 in U.S. District Court that he was not imposing the longer prison term to punish her further but to protect her unborn child.  He said that the defendant was more likely to receive medical treatment and follow a drug regimen in federal prison than out on her own or in the custody of immigration officials. The judge also said that his decision was based entirely on her HIV status.  If Tuleh were pregnant but not infected with the AIDS virus, he would have sentenced her to time served.

The Maine Civil Liberties Union criticized Woodcock’s decision when informed of it by the Bangor Daily News. “We are enormously sympathetic to the desire to ensure that Ms. Tuleh receives adequate health care, including prenatal care,” Zachary Heiden, legal director for the MCLU, said in an e-mail. “Federal immigration law has developed in truly arbitrary and punitive ways.  Here, even a federal judge could not get assurances that Ms. Tuleh would not be deported before the end of her pregnancy.  He could not get assurances she would not have her medical care arbitrarily cut off. That is wrong.

“Judges cannot lock a woman up simply because she is sick and pregnant,” he said. “Judges have enormous discretion in imposing sentences, and that is appropriate.  But jailing someone is punishment — it is depriving them of liberty. That deprivation has to be justified, and illness or pregnancy is not justification for imprisonment.”

The reader who sent this story my way added these astute comments: "The judge's rationale for the extended sentence seems to fly in the face of 3553(a), as well as the statute that states that judges shouldn't incarcerate for the sake of rehabilitation. It is also striking that the government is appealing the sentence as too long." 

Because I am not familiar with all the facts, I am inclined to withhold judgment about whether this sentence flies in the face of 18 USC 3553(a).  After all, 3553(a)(2)(D) does require a judge the consider the need for the sentence imposed "to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner."

June 4, 2009 at 07:35 AM | Permalink

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Another wrinkle is 28 U.S.C. §994(k), which says that "imposing a sentence of imprisonment for the purpose of . . . medical care" is "inappropriate[]."

Posted by: JDB | Jun 4, 2009 7:54:27 AM

Federal judges' opining about sentencing guidelines, as if they were ab initio normal and reasonable, is laughable were the effects not so painfully felt by real people. Pregnant women are regularly incarcerated in federal prison, and, in the not-so-distant past, they gave birth in shackles. The current policy and practice is that they spend a few weeks with the newborn, and then must give the child up, for years, until the term of incarceration h as been served. DOJ and BOP personnel think this all perfectly reasonable.. this is what a poor drug user/seller, or, as the feds choose to define for statutory and publicity purposes: "drug dealer", deserves. For further enlightenment and history, contact Gail Smith, long time president of Chicago's Legal Assistance for Incarcerated Mothers (CLAIM).

Posted by: FluffyRoss | Jun 4, 2009 8:16:06 AM

I don't know how often this happens, but I think the law should look upon extremely disfavorably, if not prohibiting altogether, a sentence that is higher than either party sought. It flies in the face of our legal system, in which judges choose or balance between remedies advocated by adversaries, rather than imposing outcomes requested by no one.

Posted by: Marc Shepherd | Jun 4, 2009 12:14:35 PM

Mark,
I have problems with that as well, a plea bargain can easily lead to a sentence that is too leinient for the facts. A judge should be free to evaluate whether the agreed terms actually accord with the goals of sentencing and reject the plea if the agreement is not in line with those terms. My understanding is that the general plea bargain is that the D waives right to general appeal if the final sentence is within the agreed range but that all options are open if the judge goes higher.

That seems entirely reasonable given that the executive, represented by the prosecutor has kept their end of the deal.

Posted by: Soronel Haetir | Jun 4, 2009 1:00:04 PM

You have missed the point here. The judge candidly said that he took this action not to punish the woman, but to protect the child once it is born.
Hence, this is a question of constitutional due process rights, not the sentencing guidelines. And on those grounds, the judge seems to have clearly overstepped the bounds.

First of all, it is unconstitutional to punish those who have not been convicted of a crime. Bell v. Wolfish, 441 U.S. 520 (1979). The judge candidly admitted he had no punitive purpose for imposing the additional sentence.

Second of all, with respect to the judge's stated purpose (protect the child from the mother), there are clearly established standards governing due process rights in such a context. Most importantly, the state has the burden of showing by "clear and convincing evidence" that the person is an imminent danger. Addington v. Texas , 441 U.S. 418 (1979). That did not happen hear. If a deprivation of liberty is found to be justified, the state may not just throw her in federal prison. Instead, it has a duty to provide her with the kind of treatment and setting deemed by professionals (ie her DOCTORS not a judge) to be adequate under the circumstances. Youngberg v. Romeo, 457 U.S. 307 (1982).

I hope the 1st Cir overturns this completely wrongheaded sentence as quickly as possible and immediately remands the woman to freedom.

Posted by: jane smith | Jun 4, 2009 1:21:51 PM

Doug: Your suggested reading of 18 USC 3553(a)(2)(D) is contradicted by the clarification in section 3582(a) (as well as 28 USC 994(k), as JDB points out), which prohibits a judge from using incarceration for this purpose. The troublesome wrinkle in this case is that the defendant is a deportable ("removable") alien, so if the judge tried to bail her, or put her on probation, ICE would pick her up and detain her, in all likelihood, under conditions that are at least as bad as BOP's. Would ICE bail a deportable alien who is a pregnant woman, for that reason?

Posted by: Peter G | Jun 4, 2009 2:04:33 PM

It is not the job of the federal criminal justice system to insure that convicted defendants bear healthy children. It is up to the defendant (as it is up to every mother) to see to the health of her children. A society no longer able to understand this simple truth is in big, big trouble.

This is another episode showing that "compassion" is a runaway train. The drive to be "compassionate" has simply swamped both the law and the culture, displacing discipline with ooze. For as long as that is the case, we can expect more results like this.

Ronald Reagan warned that a government big enough to give you everything you want is big enough to take everything you have. We ignore this truth at our peril. Today it is the woeful Ms. Tuleh. Tomorrow it could be any of us.

President Obama has frequently spoken up about what he sees as the transgressions of his predecessor (something Bush never did to Clinton while he was in office). Should I hold my breath waiting for Mr. Obama to speak up about this startling episode of big government run amok?

Guess not.

And where are all those pardons we were led to expect from Mr. New Day In Washington?

Posted by: Bill Otis | Jun 4, 2009 7:09:18 PM

This decision was inspired by the Boss-- Born In The USA!

If the woman was by chance deported, instead of jailed, the unborn child would not be born into citizenship. The judge is per chance bestowing upon this child to be more than good health.
Born a citizen and born without AIDS. Now if someone could just lose that transcript between the district courthouse and the court of appeals...

Posted by: mpb | Jun 5, 2009 8:33:33 AM

I once knew of a judge in state court who jailed a pregnant woman until just before whe was to give birth, in order to have the baby born drug-free, but also to spare the county the cost of the delivery of the baby. I thought that the worst of all possible scenarios.

Posted by: Greg Jones | Jun 5, 2009 11:18:04 AM

Bill, you do realize that the judge who issued that order was appointed by George W. Bush, don't you?

Posted by: Zack | Jun 5, 2009 1:27:26 PM

Zack -- That George W. Bush was taken in by this "compassion" tripe doesn't make him, or it, any better. In that connection, I note that you don't dispute a single word of my post.

Posted by: Bill Otis | Jun 5, 2009 5:31:35 PM

Yes, Bill, shame on President Obama for failing to speak up about this state-court sentencing that was highlighted in the Bangor Daily News. It's not like the guy has anything else better to do. His silence on the matter is surely evidence of his hypocracy.

Posted by: CN | Jun 5, 2009 6:13:18 PM

CN -- It's "hypocrisy," and more than a few of your fellow liberals were quite recently urging Obama not merely to condemn, but to stop, the slated execution of a state defendant in a state murder case. I must have missed the post where you criticized their wanting Obama to take up his time with that.

As for Obama's having more pressing business, you're absolutely right. First, in the name of his loudly promised transparency, we can publish the photos of detainee abuse.

Ooooooooooooooops!!! After attacking Bush for being a cover-up artist, Obama makes exactly the same decision Bush did.

Then, in the name of restoring the honor and reputation of the United States, we're going to abolish once and for all these fascist military commissions, and bring everyone to U.S. soil for trial in regular civilian courts.

Ooooooooooooooooops!!! Looks like that one has likewise become, in the immortal words of Ron Ziegler, "inoperative."

But maybe you think terrorism and how we deal with it are likewise unimportant. After all, CN, you know, "Why do they hate us???"

Posted by: Bill Otis | Jun 5, 2009 6:40:02 PM

Bill, I was merely mocking you for using a local news story as evidence of the president's personal failings. Interestingly, you then used my post to further criticize Obama, to project all sorts of political positions onto me, and to ridicule those projected positions. Your style of "debate" makes it very easy for both of us, doesn't it?

Posted by: CN | Jun 5, 2009 8:14:25 PM

CN --

"I was merely mocking you for using a local news story as evidence of the president's personal failings."

Was the "local" news story untrue? Was it so unimportant as to cause you to criticize Doug for posting it here? Is it relevant to important themes in sentencing, including federal sentencing that Obama can and will significantly affect by his judicial and US Attorney appointments? If you dispute any of that, you haven't said so.

On the other hand, why should we concern ourselves with what the President of the United States does, or fails to do, when we can launch on Rush Limbaugh?

"Interestingly, you then used my post to further criticize Obama..."

I didn't know criticism of Obama was verboten. When did that happen?

"...to project all sorts of political positions onto me, and to ridicule those projected positions."

First, at no point did I attribute a position to you. Nor have I reason to do so. I don't even know who you are, and you give no identifying information, preferring anonymity.

Second, not only did I not ridicule the positions, I AGREE with them. What I ridiculed was Obama's unvarnished hypocrisy (or was it just dishonesty?) in blasting Bush for them during the campaign and then, once safely elected, adopting them.


Posted by: Bill Otis | Jun 5, 2009 11:45:46 PM

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