United States v. Nesbeth

188 F.Supp.3d 179

United States of America,

v.Chevelle Nesbeth, Defendant.

15-CR-18 (FB)

United States District Court, E.D. New York.

Signed May 24, 2016

For the United States: Robert L. Capers, United States Attorney, Eastern District

of New York, 271 Cadman Plaza East, Brooklyn, New York 11201 By: Paul G. Scotti, Assistant United States Attorney

For the Defendant: Amanda L. David, Heidi C. Cesare, Federal Defenders of New York, Inc., One Pierrepont Plaza, 16th Floor, Brooklyn, New York 11201

OPINION

BLOCK, Senior District Judge:

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 experience 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.¹ 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 upon a defendant's conviction.

The effects of these collateral consequences can be devastating. As Professor Michelle Alexander has explained, "[m]yriad laws, rules, and regulations operate to discriminate against ex-offenders and effectively prevent their reintegration into the mainstream society and economy. These restrictions amount to a form of ‘civi[l] death’ and send the unequivocal message that ‘they’ are no longer part of ‘us.’ "²

Preparatory to sentencing Ms. Nesbeth, I afforded counsel the opportunity to opine as to whether collateral consequences should indeed be part of the § 3553(a) mix, and requested written submissions. The Government was essentially noncommittal. Not surprisingly, the Office of the Federal Defender—which represented Ms. Nesbeth—gave a positive response. Commendably, both parties' submissions detailed the collateral consequences she faces.

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 turn: (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.

I. The History of Collateral Consequences

A. From Past to Present

The notion of "civil death"—or "the loss of rights ... by a person who has been outlawed or convicted of a serious crime"³ —appeared in American penal systems in the colonial era, derived from the heritage of English common law.⁴ As explained by the New York Court of Appeals in 1888, a convicted felon in old England was

placed in a state of attainder. There were three principal incidents consequent upon an attainder for treason or felony, forfeiture, corruption of blood, and an extinction of civil rights, more or less complete, which was denominated civil death. Forfeiture was a part of the punishment of the crime ... by which the goods and chattels, lands and tenements of the attainted felon were forfeited to the king .... The blood of the attainted person was deemed to be corrupt, so that neither could he transmit his estate to his heirs, nor could they take by descent from the ancestor .... The incident of civil death attended every attainder of treason or felony, whereby, in the language of Lord Coke, the attainted person "is disabled to bring any action, for he is extra legem positus , and is accounted in law civiliter mortuus ," or, as stated by Chitty, "he is disqualified from being a witness, can bring no action, nor perform any legal function; he is in short regarded as dead in law."⁵

In the United States, civil death has never been imposed by common law; it has always been a creature of statute.⁶

The concept of civil death persisted into the twentieth century as an "integral part of criminal punishment."⁷ Some commentators express that the continuation of civil death, "[e]ven watered down and euphemistically denominated ‘civil disabilities,’ ... functioned after the Civil War to perpetuate the social exclusion and political disenfranchisement of African-Americans."⁸ These compelling critiques are not limited to traditional civil death and persist with great force to the modern imposition of collateral consequences to convicted felons.

The mid- to late-twentieth century saw the rise and fall of efforts at reforming the harshness of collateral consequences. In 1950, Congress passed the Federal Youth Corrections Act,⁹ which was designed to "give youthful criminals ‘an incentive to reform’ by ‘removing the infamy of [their] social standing.’ "¹⁰ Specifically, the Act made federal offenders between the ages of eighteen and twenty-six eligible "to have their convictions ‘set aside’ if the court released them early from probation."¹¹ The Model Penal Code disseminated by the American Law Institute in 1962 adopted a section under which a "sentencing court would be empowered, after an offender had fully satisfied the sentence, to enter an order relieving ‘any disqualification or disability imposed by law because of the conviction.’ "¹² In the years following, several states enacted measures "to dismantle the statutory apparatus of ‘civil death.’ "¹³

This reform movement reached its peak in 1984, when the House Committee on the Judiciary reported "a sentencing reform bill that contained a chapter titled ‘Restriction on Imposition of Civil Disabilities,’ " which "prohibited unreasonable restrictions on eligibility for federal benefits and programs, and state or federal employment, based on a federal conviction."¹⁴ But that bill was never passed, and the movement fell from the peak over a cliff. In lieu of the bill reported out of the House committee, Congress passed the Sentencing Reform Act of 1984, which "emphasized deterrence and incapacitation," and repealed the Youth Corrections Act.¹⁵

Today, the collateral consequences of a felony conviction form a new civil death.¹⁶ Convicted felons now suffer restrictions in broad ranging aspects of life that touch upon economic, political, and social rights.¹⁷ In some ways, "modern civil death is harsher and more severe" than traditional civil death because there are now more public benefits to lose, and more professions in which a license or permit or ability to obtain a government contract is a necessity.¹⁸ Professor Alexander paints a chilling image of the modern civil death:

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. Those released from prison on parole can be stopped and searched by the police for any reason ... and returned to prison for the most minor of infractions, such as failing to attend a meeting with a parole officer.... The "whites only" signs may be gone, but new signs have gone up—notices placed in job applications, rental agreements, loan applications, forms for welfare benefits, school applications, and petitions for licenses, informing the general public that "felons" are not wanted here. A criminal record today authorizes precisely the forms of discrimination we supposedly left behind—discrimination in employment, housing, education, public benefits, and jury service. Those labeled criminals can even be denied the right to vote.¹⁹

B. Modern Reform Efforts

The ebb and flow of efforts at reform are tiding back towards dismantlement of collateral consequences and civil death. President Barack Obama, for one, has taken steps by executive order to help felons rehabilitate and reintegrate into society. For example, he has ordered federal agencies to "ban the box," i.e., not ask prospective employees about their criminal histories early in the application process.²⁰ Additionally, the President has voiced his support for the Sentencing Reform and Corrections Act of 2015, which has received bipartisan support in the Senate.²¹ If passed, this bill would, among other things, require the Bureau of Prisons to implement recidivism-reduction programming, expand safety-valve eligibility, and permit a sentencing judge to avoid mandatory minimums in certain circumstances.²²

Other examples include the Department of Justice's National Institute of Justice's funding of a comprehensive study on the collateral consequences of criminal convictions. The study—which was conducted by the American Bar Association's Criminal Justice Section—has catalogued tens of thousands of statutes and regulations that impose collateral consequences at both the federal and state levels.²³ Based on the results of this study, former Attorney General Eric Holder implored the states to "determine whether [the collateral consequences] that impose burdens on individuals convicted of crimes without increasing public safety should be eliminated."²⁴

My former colleague in the Eastern District of New York, Judge John Gleeson, recognized the devastating effects the collateral consequences of conviction had on a defendant who was unable to procure employment due to an offense she had committed seventeen years prior. He explained...