District Court Finds Collateral Consequences Increase Harshness of Would-be Sentence

By: Zachary M. Nielsen

In United States v. Nesbeth WL 3022073 (E.D.N.Y. 2016) the district court took a fresh approach to sentencing when it considered collateral consequences and gave a defendant probation rather than jail time. Following its Second Circuit precedent (and a similar holding in the fourth Circuit), the court found the collateral consequences of a felony conviction relevant when balancing the 18 U.S.C. § 3553(a) factors. It also called for more courts to do the same.

In a lengthy opinion, Senior District Judge Block detailed the history and severity of collateral consequences before addressing the collateral consequences Ms. Nesbeth will face following her conviction. While citing many academic assessments on the topic, including the NACDL’s Collateral Consequences of Criminal Convictions: Law, Policy and Practice, the court likened the collateral consequences of a felony conviction to a modern-day form of civil death. Such collateral consequences, legal as well as social, not only create barriers to a normal life after conviction, but tend to perpetuate recidivism.
Ms. Nesbeth was convicted of importation of cocaine and possession of cocaine with intent to distribute. She was caught with over 600 grams of cocaine on her return to the U.S. from Jamaica. The guidelines sentencing range was 33-41 months. Ms. Nesbeth is a Jamaican-born college student hoping to one day become a school principal.
Because of Ms. Nesbeth’s particular characteristics, the court found that the collateral consequences of the conviction, including the loss of access to student loans, public assistance, passports, and certain employment opportunities, increased the harshness of any punishment it would hand down. Many of the other § 3553(a) factors also cut in her favor. Accordingly, the court found that she had been meaningfully punished and that any further jail time would not serve its goal of administering a just sentence. She was sentenced to one year of probation.

Author: COFPD

Federal Public Defender's Office for the Districts of Colorado and Wyoming