Judge Block’s Curious Parsimony

Eastern District of New York Senior District Court Judge Frederic Block is something of an enigma. In his book Disrobed, he straddles a fence between boldness and, well (and I mean this in the nicest possible way), cluelessness.

While Judge Block tells this story to show his boldness, fairness and concern, stepping up to reveal impropriety, it inadvertently reveals that he was totally unaware of what was happening around him. Given that this was well-known by every criminal defense lawyer in the county, it’s disconcerting that he had no clue until he read about it in the paper.

It’s as if he means well, but the entire world happens around him and, until someone smacks him in the head about it, just doesn’t register. What makes this even more astounding is that Fred Block, the lawyer, was the guy who won Clayton, giving rise to the motion for dismissal in the interest of justice. It was a huge win, a great win. And Fred Block did it.

He’s been a federal judge since 1994, when President Bill Clinton nominated him to fill Eugene Nickerson’s seat, so it’s not as if he’s just discovered that sentencing is part of a federal judge’s job.  Yet, his decision in United States v. Nesbith seems to reflect an epiphany.

A federal judge in Brooklyn, in an extraordinary opinion issued on Wednesday that calls for courts to pay closer attention to how felony convictions affect people’s lives, sentenced a woman in a drug case to probation rather than prison, saying the collateral consequences she would face as a felon were punishment enough.

The judge, Frederic Block of Federal District Court, said such consequences served “no useful function other than to further punish criminal defendants after they have completed their court-imposed sentences.”

Judge Block sentenced the defendant to probation rather than imprisonment, finding that was sufficient in light of “collateral consequences.”

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. “‘

Well, sure. And much as I hate to say it, this was known by every lawyer who ever stepped foot in a criminal courtroom long before Michelle Alexander wrote The New Jim Crow.

Judge Block doesn’t find the defendant to have been a victim, however, of a racist system, or somehow less than pretty damn culpable. He doesn’t take issue with the criminalization of narcotics or the devastating War on Drugs.

In the opinion, the judge said he considered her crimes to be serious and called her criminal conduct “inexcusable.”

So she’s a bad dudette, and what she did was “inexcusable.”  And so he sentenced her to probation?
But he also listed an array of consequences that she would quite likely face as a result of her felony drug convictions, like being ineligible for grants, loans and work assistance for two years, the duration of her college career.

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.”

That’s certainly true. But it’s been true since 1994.  It’s been true with every defendant Judge Block ever sentenced. So why now, this case, this sentence, is it different than with every other defendant?

Should collateral consequences be on the table as an incident of parsimony? This has been argued forever, and many (including myself) have made the point that the piling on of consequences, whether known or imposed ex post facto, is punitive.  Judge Block alerts counsel, both prosecution and defense, to a list provided by the official sources, the ABA and the NACDL, and informs lawyers to get their hands on them and pay attention to them.  As if criminal defense lawyers never had a clue about such things until Judge Block said so.

In Padilla v. Kentucky, 559 U.S. 356 (2010), the Supreme Court held that the failure of defense counsel to advise his client “that a conviction may have immigration consequences” violates the defendant’s Sixth Amendment right to the effective assistance of counsel under Strickland v. Washington, 466 U.S. 668 ( 1984 ). Padilla, 559 U.S. at 388. In so doing, it recognized that it had “never applied a distinction between direct and collateral consequences to define the scope of constitutionally ‘reasonable professional assistance’ required under Strickland.” Id. at 365 (quoting Strickland, 466 U.S. at 689).

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What is established, however, is defense counsel’s “overarching duty to advocate the defendant’s cause and the more particular duties to consult with the defendant on important decisions and to keep the defendant informed of important developments in the course of the prosecution.” Strickland, 466 U.S. at 688. Thus, counsel has at least a professional responsibility to timely inform both the court, as well as his client, of the significant collateral consequences facing the defendant as a result of a conviction.

As if we haven’t been doing this all along, only to get our butts chewed off by federal judges “informing” us that Congress and the courts have made it abundantly clear that these aren’t punitive consequences, but civil, and so play no role in ascertaining a proper sentence under § 3553(a).

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 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.

Spare me. Just because it’s like unwatched summer reruns to Judge Block doesn’t mean this is new to anyone else.  You know what would have been new, groundbreaking even?  If Judge Block held that collateral consequences weren’t civil, were punitive and therefore were part of the sentence, a direct consequence. How cool would it have been for Judge Block to have issued a novel ruling that called bullshit on the collateral consequence scam?

But he didn’t do that. Curious.