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April 01, 2002

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, s ee 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, s ee 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, s ee 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, s ee 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

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.