Unfair, Inappropriate and Merciless

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A federal district court judge in Brooklyn, New York, last week sentenced a woman in a drug case to six months of house arrest, a year of probation, and community service, saying that "the collateral consequences she would face as a felon were punishment enough." Judge Frederic Block added that such consequences served "no useful function other than to further punish criminal defendants after they have completed their court-imposed sentences."

Judge Block showed real mercy in this case. His sentencing opinion quoted Michelle Alexander's book The New Jim Crow, saying, "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."

Judge Block noted in his sentencing opinion that there were nearly 50,000 federal and state statutes and regulations that imposed penalties on felons. In addition to prison time, those penalties include the loss of voting rights, denial of government benefits, ineligibility for public housing, suspension of student loans, and revocation or suspension of professional and even driver's licenses.

Even private companies get in on the act. When I was convicted of violating the Intelligence Identities Protection Act after blowing the whistle on the CIA's torture program, my bank closed my checking account, my insurance company canceled my homeowners and auto insurance, and the company through which my wife and I hired an au pair to babysit our children dropped us. Why? They don't do business with criminals. I also forfeited my federal pension after 19 years of service.

When I was sitting in the courtroom awaiting sentencing, I watched as a long line of recently-convicted felons went before me. One of them was a young Hispanic man. He was there with his wife and his three young daughters. He had been caught smoking weed at the Iwo Jima Memorial in Arlington, Virginia. It was his second offense, and because it was on federal property, it was a federal crime. He stood to be sentenced, and he heard the judge call for three years in a federal prison, to be followed by deportation. "Fair and appropriate," she called the sentence. She used the same words with me a few minutes later.

I watched this poor man as he broke into heaving sobs, his girls clinging to his legs and his wife melting into her chair. Fair and appropriate. I remember thinking, "Is society better off, safer, with this man in prison? Is this the best thing for his family? Is it best for his children? Is it best for his employer? Where is the mercy?" And what additional price will he pay after paying his debt to society? Deportation.

Judges can't blame Congress and mandatory minimums for everything. On many issues, especially crimes not related to drugs, judges have wide latitude in sentencing. But most simply follow the federal sentencing schedule, which does not account for any extenuating circumstances. That's why Judge Block's ruling was so newsworthy.

Experts lauded the move, according to the New York Times. Gabriel Chin, a professor at the University of California, Davis School of Law called the sentence "groundbreaking" and said, "This is by some distance the most careful and thorough judicial examination" of collateral consequences in sentencing.

With that said, Judge Block's opinion has its detractors. Daniel Richman, a former federal prosecutor, said, "However laudable it is for the judge to highlight this problem, his decision can't solve it -- Richman, unfortunately, is right. A single judge showing mercy to a single defendant can't change the system. Other judges -- lots of them -- must follow suit. That will do nothing, though, for mandatory minimums. Only Congress can change those. And progress is slow.

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