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May 25, 2016

Federal judge justifies below-guideline sentence of probation for drug importer because of "statutory and regulatory collateral consequences she will face as a convicted felon"

As reported in this new New York Times piece, a "federal judge in Brooklyn, in an extraordinary opinion that calls for courts to pay closer attention to the impact of felony convictions on people’s lives, sentenced a young woman in a drug case to probation rather than prison, saying on Wednesday that the collateral consequences she would face as a felon were punishment enough." Here is more about the opinon:

The judge, Frederic Block of Federal District Court, said that the broad range of such collateral 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 impose penalties, disabilities or disadvantages on convicted felons.

Such consequences — the 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 also be “particularly disruptive to an ex-convict’s efforts at rehabilitation and reintegration into society.”

The issue of collateral consequences and sentencing has been considered by other courts, but Judge Block’s 42-page opinion appears to be one of the most detailed examinations yet, combined with his call for reform. 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 is likely to further 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 extensively 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 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. A jury, rejecting her claim that she had been given the suitcases by friends and was unaware that they contained drugs, convicted her of importation of cocaine and possession of cocaine with intent to distribute, the judge wrote. She faced a sentence within 33 to 41 months under the federal advisory guidelines.

But in a hearing on Tuesday, Judge Block sentenced Ms. Nesbeth to one year of probation, six months of home confinement and 100 hours of community service.

Judge Block's full 42-page opinion in US v. Nesbeth, No. 15-cr-18 (E.D.N.Y May 24, 2016), can be downloaded below. Here are a few passages from its introduction:

Chevelle Nesbeth was convicted by a jury of importation of cocaine and possession of cocaine with intent to distribute. Her advisory guidelines sentencing range was 33-41 months. Nonetheless, I rendered a non-incarceratory sentence today in part because of a number of statutory and regulatory collateral consequences she will face as a convicted felon. I have incorporated those consequences in the balancing of the 18 U.S.C. § 3553(a) factors in imposing a one-year probationary sentence.

I am writing this opinion because from my research and ex:erience 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.

There is a broad range of collateral consequences that serve no useful function other than to further punish criminal defendants after they have completed their court-imposed sentences. Many - under both federal and state law - attach automatically...

Because of the significance which I attach to the need of the criminal justice system to embrace collateral consequences as a sentencing issue, I write extensively, addressing in tum: (I) The History of Collateral Consequences; (II) The Depth and Breadth of Post-Conviction Statutory and Regulatory Collateral Consequences; (III) The Governing Caselaw; (IV) Ms. Nesbeth's Collateral Consequences and the Balancing of all§ 3553(a) Factors; (V) The Shaping of the Sentence; and (VI) The Responsibilities of Counsel and the Probation Department.

Download X1x43 Nesbeth opinion

May 25, 2016 at 02:30 PM | Permalink

Comments

Very nice decision.

Posted by: Michael R. Levine | May 25, 2016 4:48:30 PM

Agree, a thoughtful decision but still only a small shout in the dark.

Posted by: Ed | May 25, 2016 7:37:36 PM

@Doug

However you are copying and pasting it is bugged. The passages you quote are filled with typos that do not appear in the original. For example, "ex:eience" for experience and "tum" for turn. It makes the judge look inept, unfairly.

Posted by: Daniel | May 25, 2016 9:47:30 PM

Takes a thoughtful person and some guts to deviate from the once rigid guidelines.

This judge promotes respect for the law y being aware of the hazards of his power.

It takes takes self control to pull back on the reins, when one has some much power.

truely a good person first, then a judge.

Posted by: MidWestGuy | May 26, 2016 12:11:36 AM

A dangerous Judge who should be Impeached or disbarred. 600 grams of cocaine. Just plead I didn't know any better. Should have been sentenced 3 years a 100% departure ...Govt needs to appeal this. No way it survives on appeal.

Posted by: DeanO | May 26, 2016 8:21:50 AM

I read the entire opinion---it's well-done, and I don't know that it is substantively unreasonable. Additionally, there is confinement--she has been sentenced to 6 months home confinement.

If a defendant's losses (job, family etc.) are properly considered in sentencing (and in my view, many times it is proper), then what an otherwise law-abiding person will lose can be properly considered.

I don't know that this is the sentence I would have fashioned were I the judge (bringing drugs in distribution quantities into the country is a serious offense), but my guess, from reading the opinion, is that the defendant will justify the faith he has placed in her. Given what I know about sentencing law, I don't think this will be overturned. I would vote to affirm the sentence, and I don't think I'd waste my time appealing it if I were the government.

Posted by: federalist | May 26, 2016 2:07:10 PM

DeanO writes "A dangerous Judge who should be Impeached or disbarred." A trifle over the top, don't you think. If the opinion is good enough for Federalist, it's good enough for me.

Posted by: anon | May 26, 2016 7:25:10 PM

"If the opinion is good enough for Federalist, it's good enough for me."

I'll take that as a compliment.

Posted by: federalist | May 26, 2016 7:35:58 PM

Federalist writes, "I'll take that as a compliment."

It was so meant! I appreciate your intellect (but not the occasional snark ).

Posted by: anon | May 26, 2016 8:13:50 PM

Honestly, I don't understand the criticism of the judge here--the opinion is well thought out (although the political stuff about the "New Jim Crow" is completely over the top).

Posted by: federalist | May 26, 2016 8:59:23 PM

Anyone read his book?

"Disrobed: An Inside Look at the Life and Work of a Federal Trial Judge"

One review from Amazon: "As a lawyer who has come across Judge Block in my career, I have to say I received my copy with trepidation after reading all the negative reviews. Not to worry, even with a couple of distracting kids around, I managed to power through the book in about 4 days. The book is an easy read - not full of boring dissertations that will put you to sleep, but filled with amusing anecdotes that will have you chuckling (there are a couple of stories that I am surprised a sitting judge would include!). The comments about Judge Block not being humble, makes me think the reviewer has never dealt with a federal judge. As the old joke goes, "What's the difference between God and a federal judge? God doesn't think he's a federal court judge." Believe me, Judge Block is humble compared to most of the judges I've met in my career. There are things I think he could have expanded and subjects where he could have delved deeper, but for all I know, the publisher might have cut parts (it is a long book)."

Posted by: Joe | May 26, 2016 10:51:23 PM

At last, a really thoughtful opinion from a thoughtful and experienced Judge. Judge Block's opinion is one for the books and it is a precursor of future drug sentencings, and a wave to the future. Jay Surgent, Defense Attorney

Posted by: Jay Surgent | Jul 18, 2016 4:38:55 PM

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