01/05/2011 01:44 pm ET Updated May 25, 2011

Sentencing While Black

The consecutive life sentences imposed upon the Scott sisters for their role in an armed robbery reportedly involving $11 brought back a similar memory for me. Although I have forgotten the dates and names, the incident remains indelible in my mind. One of the important educational opportunities afforded to federal judges is that of visiting prisons. Although a visit to a prison hardly replicates confinement, it does give judges the opportunity to see the prison in operation and observe the living conditions. Judges eat the prison food and visit with the prisoners.

On such occasions it is not unusual to hear a prisoner insist on his innocence or bemoan the length of his sentence. On one such occasion a young black man told me that he was serving two consecutive 10 year sentences. When I inquired as to his crime, he said that he had been found guilty of altering two $2 bills to make them appear as $20s. When I expressed my disbelief that he had been sentenced to a 10-year term for each of the altered bills and that the sentence was to run consecutively, he insisted that he had no other convictions and had never been in trouble before. Still incredulous, during that visit a high-ranking U.S. probation officer was present, and I asked him and the young man for permission to examine the probation report, to which they both agreed. The report confirmed both the sentence and the lack of any criminal record. When I subsequently asked the probation officer for an explanation of this draconian sentence, he advised that the sentencing judge was notorious for imposing the maximum sentence whenever blacks were involved.

I was so outraged over the sentence that I referred the matter to a law school classmate who was then head of the ACLU. In retrospect my intervention may have been improper because the matter was not before me, nor even in my jurisdiction, but I just could not let it go. I was subsequently advised that all appeals had been exhausted; the sentence was within the discretion of the judge, within the statutory limits and there was nothing that could be done through the courts. I believe, but I am not certain, that the lawyers were ultimately successful in having the sentence commuted by the then president.

That is why the case of the Scott sisters rang a bell. I have been through the difficult process of sentencing often enough to know not to criticize a criminal sentence without having all of the facts. Jamie Scott and her sister, Gladys, were each sentenced to two consecutive life sentences for armed robbery. They have served 16 years. They were convicted of leading two men into an ambush during which the men were robbed. News reports indicate the amount was $11 (or possibly $200). Two of the three accomplices, both teenagers, apparently pleaded guilty, testified against the sisters and were released years ago. One later recanted. According to press reports, the sisters had no prior convictions and have always maintained their innocence.

Since reports of their crime varied, I reviewed the opinion of the Mississippi Court of Appeals (No.94-KA-01063 COA) which affirmed the convictions. It recited that the sisters had lured the men to a location, and:

As soon as the women got out of the car, a man shoved a shotgun through the passenger side window and ordered both men to get out of the car and lay down on the ground. The assailants hit both men in the head with the shotgun and took their wallets. At one point during the robbery Jamie held the shotgun. (Emphasis added.)

Others undoubtedly have and will discuss the propriety of making a kidney transplant a condition of their suspended sentences, but equally important is whether or not race played a role in these severe sentences. I do not mean to minimize in anyway the crime committed or its seriousness, but life terms, particularly consecutive ones, are usually reserved for the most heinous of crimes, and this certainly does not appear to be one.

The fact is we know that race plays a part in who is suspected, who is charged, who is selected for juries, verdicts, the punishment imposed after conviction and against whom the death penalty is sought. How often we do not know, but once is too often. Likewise, we do not know whether or not race played a part in the disproportionate sentences imposed upon the Scott sisters, and that such suspicion may be unwarranted and unfair... but so were the sentences.