Here are the two most important things I learned from doing my cable show on CNBC. At this time, and for decades, if not always, politicians who want to appear “tough on crime” have made it legal in New York to set up a sting operation on a young woman on welfare with four small children, no record, and five dollars to her name.
Elaine Bartlett, an African American woman, was approached in Harlem by a police informant, a white man she knew casually who offered her $2,500 to deliver four ounces of cocaine to someone in Albany. The man did this because he wanted a break on his own drug offenses. The police didn’t seem to care who was being set up but wanted to build their arrest record.
Despite her boyfriend’s warnings, Elaine jumped at the chance. Elaine’s son later told me, “We had nothing.” On delivering the package, Elaine was immediately arrested. She went to trial and was sentenced to twenty years to life at a maximum security prison.
I was told about the case by Randy Credico, who now runs the William Moses Kunstler Fund for Racial Justice along with Bill Kunstler’s widow, Marge.
Randy, who has become a hero of mine, appeared on my CNBC show in the nineties. Another guest was Republican State Senator Dale Volker, a former police officer. When Senator Volker appeared, he took the tough-on-crime position but allowed there could be “some cases worth looking at.”
I went to Bedford Hills Correctional Facility for Women, a maximum security prison in Bedford, New York, and did on-camera interviews with Elaine Bartlett and three other young women with no prior records. One was a woman who was also set up by the police. Another was a young woman who was dating a drug dealer, but there was no evidence that she dealt drugs, and the fourth woman was a young mother of two who got hooked on cocaine to lose weight and was taking orders for a drug dealer. None of these women had prior records, and between them they had a number of small children. The state seems to never consider what will happen to the children when their mother is taken away for their entire childhood and longer.
I called Senator Volker and said I’d like to give a lunch in Albany for the Republican leadership and show them the video. One of my producers, John Gabriel, worked with Senator Volker’s office to arrange the lunch, and the Republican leadership came, headed by then Republican leader Senator Joe Bruno. I remember one senator said to me, “I’ve seen your show. If it was up to you, you’d let everyone out of prison.” I said, “Nothing could be further from the truth. I believe there are many people on the streets who should be in prison, and I believe there are many people who are let out of prison who never should have been let out.”
I showed the video I had shot in the prison and made my case for clemency. Senator Bruno simply said, “I agree with you.”
He went to then New York’s Governor Pataki. Elaine Bartlett, Arlene Oberg, and Jan Warren were granted clemency that year, and Leah Bundy received it the following year. Elaine had served sixteen years, and the other women had served several years.
Elaine’s family was shattered by the experience. Her youngest son took to the streets and was sent to prison. When Elaine’s mother died, her oldest son had to leave college, where he had a basketball scholarship, to come home to look after what was left of the family.
Elaine’s boyfriend, whom she later married, had warned her and went with her thinking he could somehow protect her. He, too, was arrested, and he served twenty-one years before he was released. He had sold drugs as a teenager, so he got an even harsher sentence. It’s hard to express the gratification I feel when I say I was able to get jobs for Elaine and Nathan Brooks when they were released from prison.
Arlene Oberg, one of the sweetest women I ever met, died of a heart attack while still in her thirties.
The Rockefeller Drug Laws under which all these women received mandatory sentences have since been revised but are still unreasonably harsh. They were put into effect to punish drug dealers. Instead, way too often they are used against addicts and desperate people who make a delivery to pay for their addiction.
And it is still legal at this writing to put a police sting on a young woman on welfare with no record who has never even delivered drugs. Shame!
It’s hard to top the unintended consequences of the Rockefeller Drug Laws, but we’ve done it with our felony murder rule, which was intended to cover such examples as when two people go into a bank with guns and one kills someone, both are guilty of murder. I can agree with that.
Brandon Hein was a teenager who didn’t kill anyone, but he’s serving the same sentence—life imprisonment without the possibility of parole—as the Menendez brothers, who killed their parents; Gary Ridgeway, who killed forty-eight women in Washington state; Sirhan Sirhan, who killed Robert Kennedy; and Charles Manson, although Charles Manson does get to come up for parole. Brandon Hein can’t. Ever. So what did Brandon Hein do? He was drunk and got into a fight that involved six boys, one of whom stabbed another, who bled to death. The boy who did the stabbing admitted he did it in an effort to get another boy off his younger brother. The state did not claim that Brandon killed anyone, but under the felony murder rule as applied in this case in California, Brandon was sentenced to life imprisonment without the possibility of parole. How can that be?
Under the felony murder rule, if a jury decides that Brandon and his friends went to a fort in the backyard of a house in Agoura Hills, California, to steal marijuana and not just to smoke it or buy it as the boys claimed, Brandon could be convicted of intended robbery, and that is what the jury decided in spite of the fact that most of the boys knew each other, no one wore disguises, and nothing was taken! Several important factors help explain this gross miscarriage of justice. First, the boy who died was the son of a policeman. Second, the trial took place after the O.J. Simpson acquittal and a hung jury in the Menendez brothers’ case. The prosecution badly wanted a conviction. The most important prosecution witness in this case was Mike McLoren, who was with the boy who died and was also stabbed by Jason Holland, who admitted all of this. The witness has been a known drug user and dealer for many years who had lied to the authorities on several occasions before his testimony. Legal scholars have said the sentence for Brandon Hein, who had no prior record, is one of the most outrageous applications of the felony murder rule they have ever seen. If you want to talk about human rights violations, you need look no further than the Centinela State Prison in Imperial, California, where Brandon Hein is in his thirteenth year of incarceration. Brandon began his sentence when he was eighteen. He is now thirty-one. A life sentence with no chance for parole for a teenager who did nothing more than get drunk and get into a fight!
An even more egregious example of the felony murder rule is the story of a boy in Florida who in 2004 lent his car to his roommate, as he had done many times before, and went to sleep. The roommate and others went out and committed a burglary and a murder. The boy who was home asleep at the time was sentenced to life in prison with no chance of parole!The prosecutor said, “No car, no murder.” He might have just as well said, “No car dealer, no car, no murder.” The boy who lent his car who was asleep in his bed at the time of the crime had no prior record. The prosecution implied that statements the boy gave recalling what he knew when he was drunk the night before implied he was aware his roommate was borrowing his car to commit a crime.
I would feel a lot better about my country if we got rid of the felony murder rule. I don’t know of any country in Europe, including England, that hasn’t gotten rid of it, as have India and Canada, because it’s unjust! A few of our states have gotten rid of it but not California or Florida.
Who’s the criminal here? The boy who was asleep in his bed at the time of the crime, or the state that sentenced him to life in prison with no chance of parole? The felony murder rule disgraces America. I can think of many things my country does that disgrace us, and the felony murder rule is right up there.
I hope everyone who reads this tells everyone they know about the unintended consequences of the felony murder rule. If a lot of us start talking in our own ways and making phone calls, sending letters, etc., we can make America a better place.
As far as all those politicians who present themselves as tough on crime are concerned, I believe I’m tougher on crime than they are. I would make the case as hard as I could to never have people who’ve been arrested several times, sometimes with violence involved, walking the streets. I would never have clearly criminally insane people walking our streets but have them in institutions where they at least have a chance to be treated. This is not a job that our corrections officers should be dealing with. They should not have feces thrown at them. My position would always be tougher and fairer. Each case must be looked at individually. One size never fits all. That’s why I believe mandatory sentencing is criminal, and mandatory laws that let people out of prison when common sense says they shouldn’t be let out should be eliminated.
Oh, and by the way, we’ve never been able to pass an antilynching law in America. The best we’ve been able to do is have a “nonbinding resolution.”
You can’t make this up!