By Joe Turco
In late May, our Greenwich Village neighbor, Federal Judge Frederic Block issued an important and controversial decision in a criminal case titled, US v. Nesbeth.
Chevelle Nesbeth, the defendant in that case, had been convicted by a jury of attempting to smuggle 600 grams of cocaine through JFK airport by placing it inside the handles of her suitcase. Nesbeth was now facing a three to four year jail sentence, but Judge Block decided to go a different way with sentencing in this case and he explained why in 42 groundbreaking pages of legal analysis. Using his judicial discretion, Judge Block sentenced Chevelle Nesbeth to home confinement and probation, among other things… and simultanously released his written opinion, which some in legal circles have called unprecedented. To understand why judges, lawyers and political reformers are changing the way we look at incarceration and felony convictions, we must look to all of the consequences that convicted felons endure, quite apart from incarceration which, according to Judge Block, are often punishment enough.
In her book, The New Jim Crow, Michelle Alexander paints a frightening picture of post prison hopelessness and recidivism falling disproportionately upon people of color. Loss of benefits in housing, nutrition and other assistance combined with losing custody of children and failing to find a job, all contribute to increasing the odds that the felon will turn back to crime in order to survive. In his decision, Judge Block quoted the most poignant part of Alexander’s book: “Today, a criminal freed from prison has scarcely more rights, and arguably less respect, than a freed slave.” It is true that convicted felons, whether they are in jail, or released from jail, as in Chevelle Nesmeth’s case, are made “‘civilly dead” to us. As far as society is concerned, felons are essentially dead, having few if any rights and even fewer opportunities. According to Judge Block and other reformers, it is hard to see how the stigmatization and marginalization of felons does society any good at all.
Ever increasing prison costs take annually larger bites of our tax dollars. In America, we have 5,104 jails, but only 4,706 colleges. It costs substantially more to incarcerate a person than it does to send that person to a university. The prison industrial complex has lobbyists in every state capital and in Washington DC and they spread the fear and the message of the so-called war on drugs in order to build ever more jails and prisons. The more human beings the prison builders can monetize through incarceration, the safer you’ll be, they say, as if one in fifteen black men were not enough. Thankfully, some of the draconian Rockefeller type drug sentencing guidelines have been relaxed and we are giving back to judges the discretion in sentencing they once enjoyed. It is in that opening that seasoned judges can nudge society along.
Judge Block was criticized by the usual suspects for his thoughtfulness. The predictable and reactionary New York Post for instance, thinks he is a reckless coddler of crimimals. But a federal judge is bound by ethical rules from defending himself directly. He cannot respond to critics, nor can he comment on cases before him. His written opinion must stand on its own. I suspect it will not only stand on its own, but will be looked upon for guidance and precedence in sentencing for many years to come.
Reforming our broken criminal justice system may be the goal of forward thinking judges such as our very own Fred Block, but it must be more than just a judicial priority. Judge Block’s decision reminds us that state legislatures and Congress must resist the money and the scare tactics used by correction officer unions, prison builders and their lobbyists. Society must create opportunities and inclusion for felons while de-stigmatizing their existence. This is in the best interest of the wider society.
