Too many articles have been written about the harsh, unforgiving Federal sentencing system for me to chime in at this point. But a recent decision in the case US v. Harris by Judge Joanna Seybert shows how fragile the future of those accused of federal crimes can be due to the system.
The defendant Elvin Harris is no saint. A member of the notorious Bloods gang, he plead guilty to the armed robbery of a Chinese food deliveryman of $390 and was due to receive a sentence of 7-9 years in a Federal penitentiary; it would have been more but for Harris’ cooperation agreement with the Feds where he agreed to testify against his fellow gang member in an upcoming trial. But it not this sentence that is at issue.
When he appeared for sentencing, the government informed the court and Harris’ counsel that Harris had been charged while in custody for possessing a jail-made knife – known as a “shank.” It was discovered in a toothbrush holder in his cell during a routine search. Harris’ counsel remained completely silent and did not ask for an adjournment to investigate or find out what happened.
Well, Judge Seybert was very interested in the new charge and stated that it revealed that the defendant had not changed his criminal ways. So she changed her mind about the 7-9 years and sentenced him to 33 years in prison. So before I go on, lets look at that for a moment. She was going to give him 7 years, but because he had a shank he received an additional 26 years of jail time. How is that proportional to the offense? Harris who was 20 years old at the time would not have been eligible for parole until his 50th birthday. That was in 2005. But the Second Circuit, the appeals court, ruled that the sentencing was authorized and reasonable “due to Harris’ conduct while in custody.”
Six years later, Harris new lawyer, Richard Langone, finally got a hearing on his habeas corpus petition to reverse the sentencing based on ineffective assistance of counsel. He argued that had his first lawyer spoken to Harris or gotten an adjournment to investigate the charges, he would have learned that since signing his cooperation agreement, Harris was the subject of repeated threats and attempts against his life by Bloods members who knew of his cooperation with the government. He would have learned that the only way the Nassau County Correctional Center (which houses Federal prisoners held on Long Island) could keep Harris safe was by keeping him in protective custody in a single, mini-cell, 23 hours a day, with one hour of “recreation” spent by himself in a small cage. He would have also learned that even in protective custody, crafty inmates find a way to get at inmates and that the prison was considering dropping the shank charges because it was evident that Harris had it in his cell for self-defense. (In fact, the shank charges were eventually dismissed by the jail!) Since being transferred to Federal Custody, he has been incarcerated in the same fashion and transferred to five different penitentiaries because the Federal Bureau of Prisons noted that “they didn’t know what else they could do to protect him.” Even the Feds could not guarantee his safety due to the number of Bloods and the influence they have among the incarcerated.
Hearing all this for the first time Judge Seybert stated:
“The court [originally] viewed the shank as evidence as evidence of [Harris’] continued gang involvement, overall violent lifestyle and inability to be rehabilitated. . . .. [T]here is more than a reasonable probability that it would have sentenced [Harris] differently if it had known that [Harris] had the shank for self-defense.”
Judge Seybert vacated the sentence and set November 18, 2011 for the new sentencing date. In doing so she stated, that “it was unreasonable for [the first defense lawyer] to stand by in silence while both the government and the court harped on the fact that the shank was evidence of ‘incorrigibility.'” I agree. But it also shows that a person facing a Federal crime cannot count on the “system” to protect him in jail or in the courtroom. Why did it have to be up to the lawyer to investigate the nature of the charges? Why didn’t the US Attorney contact the prison to learn the details of the charges and therefore advise the court that even the prison officials felt it was for self-defense. Why didn’t the judge automatically give the defendant an adjournment so his counsel could investigate the situation. Lets not forget that she sat silent while he sat silent. She is outraged at his ineffectiveness now, where was the outrage then? I have had judges, when information or statements in a sentencing report were going to cause a change in the outcome, ask “Counsel, I assume you will want to speak with your client or seek an adjournment to check this out?” But instead, Seybert just let the defense move forward without even saying a word about the shank. Everyone involved at that original sentencing hearing violated their obligation to justice and fairness.
All of this sends a clear message to those involved in the Federal criminal justice system: make sure you have someone standing next to you who is not afraid to speak up on your behalf because they may be the only thing between you and undeserved harsh punishment.