The Innocent
and Not So Innocent Alike Untold Casualties in the War on Crime
By Abbe Smith
We like war talk in this country. No matter
how complex or intractable the problem, the answer is to wage war. Before
the current War on Terrorism, there was the War on Drugs, the War on
Hunger, and the War on Poverty. And for the past thirty years we have
been engaged in a desultory yet aggressive War on Crime.
There are invariably casualties in war—nameless,
faceless victims whom military officials justify as the necessary but
unfortunate cost of a righteous cause. The casualties are often reduced
to numbers—numbers dead, wounded, and displaced. In the War on Crime,
there are also numbers: more than two million in jail or prison,
see Fox Butterfield, Number of People in State Prisons Declines
Slightly, N.Y. Times, Aug. 13, 2001; $30 billion spent yearly on
state and federal prisons and local jails, see Fox Butterfield,
Tight Budgets Force States to Reconsider Crime and Penalties,
N.Y. Times, Jan. 21, 2002, at 1; nearly $150 billion spent overall combating
crime, see Fox Butterfield, Study Finds Steady Increase at
All Levels of Government in Cost of Criminal Justice, N.Y. Times,
Feb. 11, 2002, at A14. The United States now has the largest prison
system in the world, see Elliot Currie, Crime and Punishment
in America 3 (1998), with a rate of prisoners to residents five times
that of any country in the European Union, see Fox Butterfield,
Number in Prison Grows Despite Crime Reduction, N.Y. Times, Aug.
10, 2000, at A10, and a prison population that has risen 500 percent
in the past three decades. See Fox Butterfield, Tight Budgets
Force States to Reconsider Crime and Penalties, N.Y. Times, Jan.
21, 2002, at 1; see also Marc Mauer, Race to Incarcerate 1 (1999)
(noting that between 1985 and 1995 a new prison opened every week).
The individual cost—the length and harshness
of incarceration—has also risen: the average prison stay is nearly 50
percent longer than it was ten years ago, see Fox Butterfield,
Number in Prison Grows Despite Crime Reduction, supra,
as conditions have worsened, see generally Abbe Smith, Can
You Be a Good Person and a Good Prosecutor? 14 Geo. J. Legal Ethics
355, 366-68 (2001), and educational and vocational programs have been
all but eliminated. See, e.g., Fox Butterfield,
Tight Budgets Force States to Reconsider Crime and Penalties,
supra; see also Robert Worth, A Model Prison, Atl.
Monthly, Nov. 1, 1995, at 38.
Who are these two million people incarcerated
in America? We seldom hear of them. This is because they have been exiled,
removed from society, banished from our midst. They are securely behind
the prison walls and we are safely on the other side. We don’t want
to even think about them. There are stories to be told, however. I’d
like to share two.
Patsy Kelly Jarrett
Patsy Kelly Jarrett is a fifty-one-year-old
woman from Trinity, North Carolina, who has spent nearly half of her
life at Bedford Hills Prison in New York. Prior to her 1977 murder conviction—for
a crime for which she has steadfastly maintained innocence—she had no
criminal record of any kind.
At trial, the prosecution maintained that
Jarrett had traveled from North Carolina to New York with a man named
Billy Ronald Kelly (no relation, but the shared name would serve to
further tie the two together), and then helped him rob and murder a
seventeen-year-old gas station attendant in the nearby town of Sherrill.
Jarrett was alleged to be the lookout or getaway driver. At trial, a
witness identified Billy Ronald Kelly as the man who nervously sold
him gas, and Jarrett as the driver of a car that pulled up to the gas
pump while he was at the station. His description of the car matched
the one driven north by Jarrett and Billy Ronald Kelly.
The witness, Robert Hyland, had never before
made a positive identification of the driver he claimed to have seen.
Two days after the killing, Hyland couldn’t say with certainty what
the driver’s gender was; he didn’t get a good enough look at the driver’s
face to describe any facial features; and he offered nothing about the
driver’s age, build, clothing, speech, or manner.
Forensic evidence corroborated Robert Hyland’s
consistently positive identification of Billy Ronald Kelly. When the
police discovered the attendant’s body in the back room of the station,
his throat slashed so deeply he was nearly decapitated, they also found
Billy Ronald Kelly’s fingerprints on the adhesive tape used to bind
and gag him.
The prosecution’s case against Jarrett
was much weaker. It rested on a fleeting observation by a single witness.
When, in December 1975, nearly two and a half years after the crime,
Hyland was shown a photo spread that included Jarrett’s picture, he
equivocated. He stated that two of the photographs "looked like"
the person he had seen in a car at the station. At the grand jury proceeding,
Hyland continued to express uncertainty about the gender of the second
person he had seen at the station, saying only that the person operating
the car might have been a female, and that Jarrett could
be the driver, but he couldn’t say for sure. At the suppression hearing,
Hyland testified that two different photographs looked like the person
in the car and that Jarrett was possibly the person he had seen,
but failed to identify Jarrett in open court. The first and only time
that Hyland positively identified Jarrett in person as the driver of
the car was at trial three and a half years after the crime.
At trial, the evidence offered against
Jarrett mostly established her connection to her codefendant. Recognizing
the danger of guilt by association for Jarrett, her court-appointed
lawyer moved for a severance. The trial judge denied the motion.
Jarrett’s lawyer faced a dilemma. He knew
from his client that there was no deep bond between Jarrett and her
codefendant. The two were friends and travel companions, but nothing
more. Their bond was their interest in members of their own sex, not
in each other.
Shortly after arriving in Utica, New York,
Billy Ronald Kelly became sexually involved with a man named William
Sullivan. Sullivan, an effeminate-looking man in his twenties with shoulder-length
brown hair—who matched the description witness Robert Hyland gave of
the person he saw at the gas station—may well have been in the car that
day.
Although revealing his client’s sexuality
might have challenged the prosecution’s depiction of Jarrett and her
codefendant as a couple, he believed that jurors might be more hostile
to Jarrett if they knew she was a lesbian. He advised Jarrett to avoid
any mention of her sexual orientation, and even say that she had "dated"
Billy Ronald Kelly—but explain that it had not been a serious involvement.
When Jarrett testified at trial, she denied
any knowledge of what happened at the Seaway station on August 11, 1973,
and denied participating in the brutal slaying. The jury was out for
two days before finding Jarrett guilty. Jarrett was subsequently sentenced
to life in prison. She has since challenged her conviction. She had
one short-lived victory. The U.S. District Court for the Southern District
of New York granted Jarrett’s petition for writ of habeas corpus, agreeing
that the identification evidence was unreliable and should not have
been admitted at trial, and expressing concern that an innocent may
have been unjustly convicted.
Shortly after this decision, the state
made Jarrett a plea offer: If she pled guilty they would not appeal
the district court decision and Jarrett would receive a time-served
sentence. By this time, Jarrett had already served ten years. The plea
would result in Jarrett’s release. Jarrett refused the plea. She said
she could not plead guilty to a terrible crime she did not commit and
live with herself. Jarrett also believed she would be vindicated by
the court of appeals. The state appealed. Six months later, the U.S.
Court of Appeals for the Second Circuit reversed and upheld Jarrett’s
conviction. Because Jarrett’s wrongful conviction was largely the result
of factual, not legal, errors, she had no grounds for further appeal.
The years passed. Jarrett turned to faith
and became a devout Catholic. She worked with the neediest patients
in the prison infirmary, those with cancer and AIDS. She became in all
respects a "model prisoner."
In the mid-1990s, with executive clemency
the only avenue left to Jarrett—something she knew was at best a long
shot—a group of students and teachers from Harvard Law School began
to reinvestigate the case. Unfortunately, however, most of those involved
in the case had retired, moved away, or died. At the suggestion of a
state police sergeant, Jarrett was polygraphed by a prominent polygraph
examiner who trains state and federal law enforcement officers. She
passed, registering the highest degree of truth telling when she stated
she had nothing to do with the robbery and murder. A lengthy clemency
petition was assembled, full of compelling documentation about Jarrett’s
good character, good conduct in prison, and strong claim of innocence.
As of this writing, Jarrett has had three clemency petitions denied.
Jarrett no longer wants to file a clemency
petition. She believes she will never be granted clemency. She is probably
right. In this political climate—and especially after the firestorm
that accompanied former President Bill Clinton’s pardon and clemency
grants—it is not in any executive’s interest to commute the sentence
of a convicted prisoner, especially one convicted of a violent crime.
The problem is that Jarrett has no constituency,
no clout, no cachet: She is not from New York, not a battered woman,
not a drug offender swept up under the harsh "Rockefeller drug
laws," not a former member of the Weather Underground, and not
a celebrity. DNA cannot help Jarrett, nor can new studies debunking
fingerprint or other forensic evidence, as she was not alleged to have
had any physical contact with the decedent. The problem with Jarrett’s
case is she is just plain innocent—and nobody seems to care much
about the wrongful conviction of innocent people unless it concerns
someone they know.
So Jarrett struggles on. Since she has
been incarcerated, both of her parents have died. She is beginning to
worry about dying alone in prison. Still, she believes God has a purpose
for her, and she is fulfilling this purpose by caring for others in
prison. Meanwhile, Jarrett endures a life of routine indignity and almost
constant surveillance. Jarrett hopes that one day she will gain her
freedom and join a convent not far from the prison. This has become
her dream. In the meantime, prison is her life.
Lawrence Thomas
In the late 1990s, Lawrence Thomas faced
two charges of possession with intent to distribute crack cocaine in
the District of Columbia. Thomas acknowledged that he sold drugs on
occasion; he had served time for doing so. He was also a promising music
producer. He had decided to end his connection to the drug world once
and for all when he was arrested and charged with these offenses.
Many of those who knew him did not know
Thomas had a drug dealing past; those who did explained it as a youthful
lack of direction and the lure of the street and fast cash. No one saw
Thomas as a "drug dealer"; they saw him as a promising young
man.
His cases were scheduled before a judge
known as a relatively lenient sentencer on a guilty plea but a very
harsh sentencer after trial. Because the government was unwilling to
offer anything short of a prison sentence for a plea, Thomas insisted
that he wanted to go to trial. His lawyers conducted an investigation,
fought hard for discovery—especially information pertaining to prior
bad acts on the part of the arresting police officers—and prepared and
litigated a range of pretrial motions. However, after hearing the officers
testify at the suppression hearing, Thomas’s lawyers urged him to take
a plea and cut his losses. They reminded him that he would have to win
two cases to walk away, and this judge would hammer him at sentencing
if he lost either case. They anticipated that if Thomas took a plea
he would be out in two to three years.
Thomas maintained that these two arrests
were cooked up by dirty cops, known for concocting cases. He was not
selling drugs; the police were settling an old score. Thomas’s lawyers
begged him to take a plea. He refused. He said he could not willingly
put himself in prison. They would have to convict him.
The jury did just that. The judge sentenced
Thomas to nine to twenty-seven years, rendering it unnecessary for the
government to pursue the second case. Under current sentencing law and
practices, Thomas could serve more than a decade.
Several months after the verdict, one of
the officers in his case was indicted for falsifying evidence in another
case. It turned out the government had been watching this officer—he
had been questioned repeatedly about his ties to a major drug dealer
in the District of Columbia, and he had testified before a grand jury—during
the pendency of Thomas’s case.
Thomas continues to pursue his appeal.
He has now served four years in prison. Soon after Thomas was incarcerated,
his mother died. Although the court gave him permission to view his
mother’s body, this never happened. Instead, Thomas sat in a van outside
the funeral home for hours, handcuffed to the seat, weeping quietly.
The prison had failed to make the proper arrangements and no one was
available to let Thomas in.
Recently, all of Thomas’s legal papers
were destroyed by the prison. Authorities had taken the papers from
him because they were too "large" to accompany him in transport,
and had promised to mail them.
Thomas dreams of vindication and freedom.
In the meantime, prison is Thomas’s life and will be for some years
to come.
Endless Incarceration of People Who
Pose No Threat
Neither Patsy Kelly Jarrett nor Lawrence
Thomas poses a threat to society. The one is innocent and the other
may well be. However, even if Jarrett had been at that gas station,
does she need to be imprisoned for life? Even if Thomas had been selling
drugs, does he need to be imprisoned until he is middle-aged? What purpose
is served by locking up these people—and countless others like them—for
an excessive number of years?
There is something wrong with a criminal
justice policy that looks only to lengthy imprisonment as the answer
to crime, and a criminal justice system that blithely follows along.
There is something wrong with a system of executive clemency that fails
to intervene where there has been a wrongful conviction or an excessively
harsh sentence. See Herrera v. Collins, 506 U.S. 390,
412 (1993) ("Clemency is . . . the historic remedy for preventing
miscarriages of justice . . . [and is] the traditional remedy for claims
of innocence. . . . "). As the Supreme Court noted: "It is
an unalterable fact that our judicial system, like the human beings
who administer it, is fallible. . . . Executive clemency has provided
the ‘fail safe’ in our criminal justice system." Id.
As we contemplate criminal justice, social
justice, and human rights in the millennium, we would do well to rethink
the misguided War on Crime with its credo of prison and more prison.
We would do well to think about the real cost of prison: the waste of
human life and potential. We would do well to think about Patsy Kelly
Jarrett, Lawrence Thomas, and the two million others behind bars.
Abbe Smith is an associate professor
of law and associate director of the Criminal Justice Clinic and E.
Barrett Prettyman Fellowship Program at the Georgetown University Law
Center.
