Criminal Justice

"A Poster Boy for the Long-Sentenced, Non-Violent Drug Offender?"

Sen. Cory Booker gives William Underwood as an example of a man "serving a life sentence ... for a nonviolent drug crime he committed in 1988." But "[t]he government's evidence at trial showed that from the 1970's until his arrest in late 1988, Underwood supervised and controlled an extensive and extremely violent narcotics trafficking operation involving a number of murders and conspiracies to murder ...."

|The Volokh Conspiracy |

Kent Scheidegger of the Criminal Justice Legal Foundation has the story, which he graciously allowed me to reprint.

Ann Coulter has this post on her website. She can be over the top at times, so I did some checking before posting on it myself. Ms. Coulter writes:

"Over the weekend, NBC News investigative reporter Leigh Ann Caldwell appeared on MSNBC's 'Kasie DC' to tell the story of Bill Underwood, loving parent and prison mentor, who has already spent nearly 30 years in prison for a nonviolent drug crime. "

Ms. Caldwell reported:

"William Underwood, now 65 years old, was sentenced to life in prison without parole for a nonviolent drug-related crime. It was his first felony, but in the middle of the tough-on-crime era, the judge showed no leniency. With no hope of ever walking free again, Underwood has made the best of his time in prison, mentoring others and staying devoted to his children and grandchildren, as (his daughter) Ebony fights for his release."

The segment is here. That is indeed what Ms. Caldwell says. Is it true? Does she care if it's true?

Ms. Coulter again:

"Despite what I'm sure was an exhaustive investigation, I was suspicious of Caldwell's characterization of Underwood's crime. My rule is: If you're not telling me why someone was sentenced to life in prison, there's probably a reason you're not telling me.

"All we got from Caldwell was: Here's this great father behind bars; He just got caught up in something, we're really not sure what it was—and here's his daughter, Ebony, to tell us what a terrific father he is.

"Considering that she's arguing for Underwood's immediate release into the general public, it seems odd that Caldwell doesn't know what he's in prison for, nor does she have the slightest interest in finding out."

Indeed. "We're not really sure …"? It's not hard to check. Ms. Coulter turned to Nexis and the press. She found a Newsday story from 1990 reporting:

"A rock band manager was convicted yesterday as the head of a vicious Harlem drug gang that prosecutors said carried out six murders, including the controversial slaying of a witness in 1983.

* * *

"William Underwood, 36, faces up to life in prison without parole for his conviction in U.S. District Court in Manhattan on charges of racketeering and operating a continuing criminal enterprise—the so-called federal narcotics 'kingpin' law."

So our non-violent, drug-related first offender was a leader of a drug gang which had a witness against it "whacked," at least according to Newsday.

But wait, there's more. Ms. Coulter checked with The Newspaper of Record:

"In a 1988 article titled, 'Brutal Drug Gangs Wage War of Terror in Upper Manhattan,' The New York Times reported that Underwood's heroin operation was 'considered by law-enforcement experts to be the most dangerous drug gang in Harlem.' All told, the gangs were 'believed to be responsible for as many as 523 slayings in upper Manhattan in the last five years.'"

Personally, I would like to have some actual court documents, so I go to PACER. First, I have to make sure I have the right William Underwood. Ms. Caldwell reports that he has been in federal prison for 30 years. A PACER Case Locator search for federal criminal cases with a defendant named William Underwood and initiated between 1985 and 1992 turns up only one case: United States v. William R. Underwood, SDNY No. 1:1988-cr-00822. A search of the U.S. Bureau of Prisons inmate locator turns up only one life-sentenced William Underwood, again William R. Underwood. The other William Underwoods listed are not life prisoners and were all released long ago. We can have a high degree of confidence that this is the right guy.

A sentencing memorandum would be great. Unfortunately, due to the age of the case there isn't too much available in the district court. Even the docket begins at the postconviction stage, and no documents are available until Underwood was down to the last-ditch FRCP 60(b) motion to reconsider the denial of the motion to vacate the sentence. (If that makes your head spin, welcome to the club.)  The judge's decision is available here:

"In 1990, William Underwood was convicted of participating in and conspiring to participate in a racketeering enterprise, 18 U.S.C. § 1962(c) and (d); of participating in a narcotics conspiracy, 21 U.S.C. § 846; and of operating a continuing criminal enterprise, 21 U.S.C. § 848. At the time of his sentencing, the Sentencing Guidelines had been in effect for more than two years, but they only applied to crimes that occurred or continued after November 1, 1987. If sentenced under preguidelines law, Underwood faced a statutory penalty of imprisonment that ranged from 10 years to life. Under the sentencing guidelines, Underwood faced a mandatory sentence of life in prison without parole."

The decision includes a citation to the Second Circuit's decision on the original appeal, which is published. See United States v. Underwood, 932 F.2d 1049 (2d Cir. 1991) cert denied 502 U.S. 942 (1991).

"The government's evidence at trial showed that from the 1970's until his arrest in late 1988, Underwood supervised and controlled an extensive and extremely violent narcotics trafficking operation involving a number of murders and conspiracies to murder, a highly organized network for the street-level distribution of heroin and the importation of large quantities of heroin from Europe to the United States. The government presented the testimony of more than 50 witnesses, including a number of former members of Underwood's street-level distribution organization, and introduced more than 250 exhibits."

Id. at 1051.

The court of appeals does not detail the evidence of violence because it is not relevant to the issues Underwood argued on appeal. Nonetheless, the violent nature is right there on the face of an easily findable opinion. And NBC (unlike me) is in New York. They could easily have the paper record pulled from the archives and get the sentencing records if they cared about the truth.

So let's compare what we know (and NBC could have known with minimal effort) with Ms. Caldwell's description of the case: " a nonviolent drug-related crime … his first felony …."

"Nonviolent"? The racketeering and continuing criminal enterprise crimes are not inherently violent or nonviolent. They could be either, depending on the predicate acts. The court of appeals says the operation was "extremely violent." False.

"Drug-related"? Yes, but so what? His drug offenses were accompanied by violent offenses. Calling the convictions "drug-related" in conjunction with the false "nonviolent" gives the reader a very wrong impression. Literally true but misleading in context.

"A … crime"? Singular. He was convicted of multiple crimes. False.

"His first felony"? The singular again is false. "First felon[ies]" would be literally true if it referred to his first felony convictions and completely false if it referred to the first felonies he committed. The predicate acts establish a long string of felonies. Ambiguous, with the false meaning being the one the viewer is most likely to take.

"But in the middle of the tough-on-crime era, the judge showed no leniency"? Given the judge's finding of fact that Underwood's continuing crimes extended past the Guideline's effective date, the life sentence was mandatory under the then-binding Guidelines. The implication that the judge had discretion under the law but chose not to use it because of the "tough-on-crime" zeitgeist is false.

To call this shoddy journalism would be an understatement. What will NBC and its affiliate MSNBC do? Issue a retraction and apology? Pull the segment off the website? Fire the reporter? All of the above? None of the above?

How did a story like this ever get through? Once upon a time editors were supposed to catch sloppy work like this. Are there any Perry Whites left in American journalism? Now confirmation bias runs the show. If the story fits the approved narrative, fact-checking is optional.

I e-mailed Sen. Booker's press people (here's their press release) and the MSNBC "Kasie DC" people for their side, and hadn't heard back from them.

I also e-mailed the author of an NJ.com article that reports on Sen. Booker's proposal, and starts with "Convicted of a nonviolent drug crime, William Underwood of Tenafly has been in prison for around 30 years." The author told me that he was just reporting Sen. Booker's statement (though the "nonviolent drug crime" part was in the author's own words, and not attributed as Sen. Booker's assertion).

I should also note that some of Underwood's defenders are arguing that the jury wrongly convicted him of running the drug conspiracy, and that in reality he had just been a minor drug dealer who had long left the business at the time of his conviction. But it seems to me that any coverage of the story that takes that view has to acknowledge that he was convicted of running a highly violent conspiracy, rather than just baldly labeling him a nonviolent offender.

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  1. The feds make it a practice to never get their hands dirty with street level dealers trying to pay the rent.
    If the feds were after him, he was a huge fish, worth the time to put on ice.
    Someone sold Spartacus a pig in a poke.

    1. “The feds make it a practice to never get their hands dirty with street level dealers trying to pay the rent.”

      Yes, and never mere junkies. Possession charges are the results of plea bargains in the federal system.

  2. Always interesting to get the facts behind the “facts”.

    Doesn’t matter that his business (selling drugs) should have been legal; murder is never non-violent, and he can’t blame those on side effects of the government busybodies sticking their nose into his non-violent drug business.

    1. his business (selling drugs) should have been legal

      Enslaving people should be legal? Killing people and destroying families should be legal?

      1. his business (selling drugs) should have been legal

        Enslaving people should be legal? Killing people and destroying families should be legal?

        No; selling drugs should be legal. Please pay attention.

        1. Selling drugs is legal. I buy drugs when I go to CVS or another pharmacy, and buy a bottle of Advil. Other drugs are considered more risky, and certain documentation is needed before it can be purchased. Just about any drug can be purchased, assuming the right documentation to acquire the drug is obtained.

          1. thanks for splitting stupid hairs on a bald head

      2. Sheesh, yes, pay attention. You’ll have fewer problems in life if you don’t try to misread so much.

        1. Comparisons. Too much for some people.

          He is saying drugs enslave people thru addiction, kill and destroy lives.

          1. Which is not only undeniable, but obviously undeniable.

            1. I deny it, so obviously it’s easily deniable.

              An addict isn’t a slave. An addict still had free will. Addicts can, and do, choose to stop using drugs. Some can do it on their own while others need help, but neither one is a slave.

              And if an addict cares more about getting his next fix than he does about his family that’s on him, not the drugs.

              1. “that’s on him, not the drugs”

                Remarkable.

                Not in a good way.

                1. I thought Republicans were the party of personal responsibility? If he chooses not to get the help he needs, it’s absolutely his fault. Just like it is if he’s addicted to alcohol, or porn, or gambling, or shopping, or any of the other addictions that ruin people’s lives.

              2. the androids are always so sure of their programming

          2. “He is saying drugs enslave people thru addiction, kill and destroy lives.”

            By that standard, wine, spirits, fast food, and organized religion — for starters — must be prohibited.

          3. he’s saying bullshit, cause that’s a delusional fantasy. actually enslaving and killing people is real, the side effects of drug abuse are just whimpering 1st world entitlement.

    2. If selling drugs were legal, this guy would not have been in that business. He sought out a high-risk and therefore high-profit venture.
      If drugs were legal, he would have gone into gambling, prostitution, or smuggling. If all those were legal, probably hijacking or fencing stolen goods.

      1. The criminal soul cannot be deterred by changing laws!

        Didja check his skull shape?

        1. Are you saying high, high profits are not the reason dealers, as compared to mere users, get involved in dealing?

          The Mafia [before the cartels pushed them out] didn’t start out selling drugs, it made its money thru gambling, unions etc., then moved into drugs later.

          1. I’m saying the required logic of Malvolio’s post was that this guy was inevitably going to be a criminal regardless of what the laws say is criminal. Which is some Victorian era sociology.

            The high profits brought about by criminalization are a reason why dealers get into the biz, they are not THE reason.
            Any more than lawyers all get into it for the $$.

            1. Why do they get into the business other than money?

              1. Many lawyers get into the law business because they know lawyers. People work what they know. Maybe my cousin can get me a job at the plant. Etc. In a sense it’s for the money, but people take the jobs they know about, and that are available in their community.

              2. Profits can be high without criminalization of the underlying trade. Demand is the primary driver.

                This dude would probably have been a criminal in any case, but I doubt most people in the drug trade prefer it that way. To them, it’s just a job.

                1. Criminalization increases the risk (and reduces the supply to an extent), which increases the price (and profits) that can be obtained for the same quantity of material.

                  Most people in the drug trade do it because of the very high profit margins, which can be obtained due to the high risk. To give an example, the “street price” of a kilo of cocaine is on the order of $20,000. A kilo of cocaine costs no where near $20,000 to produce or transport (and isn’t under patent protection). It costs that much because it’s illegal, the high risk inherent in transporting and selling it (and the demand, to an extent). That high risk is why dealers can make so much.

                  A legal drug on the other hand (ibuprofen, for example) is dirt cheap (~$12 a kilo), despite also having high demand. There’s no risk involved in selling it, so the amount a “dealer” (ie a clerk at CVS) can get is quite low….$7.25 – $15 an hour. It’s also “just a job”. But the people in the illegal drug trade want more money, and have higher tolerance for the potential risk.

            2. I’d say it’s partly correct. If drugs were never illegal, or let’s say were legalized when he was a baby, there would likely have been a society with less criminality and less criminals, lots of things would have been different. There would still have been violent criminals, just as the mafia and other gangs existed before prohibition, but it’s impossible to say if he would have still been a criminal or gone down a different path in this different society.

              If drugs were legalized after he had already started his life of crime and especially angry he had become leader of his own gang, it’s still impossible to say for sure what he would do, but it’s very likely he would have sought out a new criminal enterprise, havjng experience and skill as a criminal and being used to that lifestyle, and not having marketable legal skills or being used to the life style and behavior of someone working a legal entry level job.

              Though it’s theoretically possible that the collapse of the drug trade would be enough to compel him out of criminal endeavors, it’s more likely that the reduction in criminals would come more from people not starting criminal careers than people ending them. But still, people do change so you never know.

          2. Are you saying high, high profits are not the reason dealers, as compared to mere users, get involved in dealing?

            Correct. Drug dealers do not get rich. Of course, if they work their way up the food chain, as this guy supposedly did, they can.

  3. Underwood and his supporters must have been out of the loop for a while. Instead of going the “low-level, first-time, nonviolent, drug offender” route, they should have accused the Department of Justice of engaging in a WITCH HUNT. Say the agents investigating Underwood were conflicted, had a bias against Underwood (any characteristic will work, but ideology and partisan are always preferred), and went on a fishing expedition in search of incriminating evidence. Prosecutors then stretched the meaning of the statutes beyond any reasonable interpretation, and biased judges (insert the name of the appointing president before the judge’s names, preferably in quotes) then handed down UNFAIR sentences. Make sure to throw in a lot of hyperbole, like “No one in the history of the mankind has ever been less violent than Underwood or been treated more unfairly by the corrupt DOJ. Worst perversion of justice EVER!” Lastly, mention that none of this would have occurred if Hilary Clinton had done what Underwood “supposedly” did.

    That’s how you defend yourself against accusations of criminal conduct.

    1. Awww…
      Has St. Robert’s utter implosion got you feelin’ blue…?

      1. post-report Mueller is QAnon for pundits and wine moms. He will rise again.

        1. The fact that he needs to “rise again” is disgusting and disturbing, given the level of responsibility he voluntarily accepted and exercised over the last 3 years.

          1. You’re as bad as the pundits and wine moms!

          2. It was a God damn book report…and he (allegedly) WROTE the book!

      2. I’m not sure I follow. It sounds like we are in agreement. The DOJ is corrupt and bias is present in all its corridors. All convictions ever obtained by the DOJ are thrown into doubt now that its true nature has been exposed.

        We are in this together friend.

    2. “That’s how you defend yourself against accusations of criminal conduct.”

      what a spiel!

      Please show me on this doll where the BadOrangeMan touched you.

      1. Well, in the wallet, for one.

  4. Why are you fact checking Cory Booker and not Trump?

    Someone was going to say it, so I thought I’d be first.

    And William Underwood is a changed man, how many murders has he been implicated in since he was incarcerated in 1985?

    1. “how many murders has he been implicated in since he was incarcerated in 1985?”

      Are you suggesting that being in prison has kept William Underwood from trying to organize more murders?

  5. Liberals lying? Surely, you jest!

  6. “The government presented the testimony of more than 50 witnesses, including a number of former members of Underwood’s street-level distribution organization, and introduced more than 250 exhibits.”

  7. Say what you will about her, but this is why I read every resource, even “articles” Coulter publishes. She was right to ask questions about this case and it’s very clear that Underwood is not how the media and Booker portrays him to be.

    Shit like this automatically disqualifies Booker because he clearly can’t get people to do good research. Leaders don’t follow blindly like this. Regardless, this will probably spawn a lot of conspiracies that he is a stooge for someone or something. It is so difficult to believe in 2019 that a Presidential candidate and Senator can’t use Google before spouting bullshit.

    1. Shit like this automatically disqualifies Booker

      Uh-oh, guys, Booker lost awildseaking’s vote!

      Booker sucks, and it looks like he screwed up here and should be called on it, but this is pene-ante stuff, not worthy of the melodrama. Though if you’re an avid Coulter reader, I suppose that’s just the waters you swim in every day.

      1. As much as it may disappoint you, Booker decided to grandstand and hop in on an issue and make it a focal point. He’s done this before because he’s a jackass and shouldn’t be in any leadership positions, public or private. If you can’t even take your pet projects seriously, that’s weirdly manipulative. I’m really starting to wonder what Trump meant when he said he knows more about Booker than he knows about himself.

        Also nice strawman. Avid reader my ass.

        1. Your objective analysis aside, being a grandstanding tool is more a description than an indictment of politicians. It’s manipulative, but it’s more common than weird.

          Say what you will about her, but this is why I read every resource, even “articles” Coulter publishes

          Also nice strawman. Avid reader my ass.

          Do you know what avid means?

          1. Yes. You’re suggesting that I read her quite a bit and I don’t. You know why I quoted the word articles? Because what I’ve read of her is nothing more than a raving madman. She reads like someone blathering on and not like a well constructed book or argument. It feels like a speech transposed onto paper.

    2. Also, I’m raging with Spartacus tears /s

    3. Always great to see Trump fans demanding exacting standards with respect to anything from anyone at any time.

      Carry on, clingers . . . maybe dial up the bigotry, though, if you want to pull off another multi-cushion trick shot at the Electoral College.

  8. Mass incarceration.

    Institutional racism.

    If he wuz a white man, they would have given him a party.

    1. The race realists have logged on.

  9. “Kent Scheidegger of the Criminal Justice Legal Foundation has the story . . .”

    ‘Often libertarian. More often authoritarian. Most often conservative.’

  10. I find it HILARIOUS (and sad) that while they try to undo the evil that they did in the drug war, they are on the road to outlaw tobacco and vaping.

    Evil or stupid?

    Both?

  11. You have to give Booker a pass here, it could be his friend Tbone.

    I find it hard to blame a man trying to help a close imaginary friend who has been in jail 35 years.

  12. Ms. Coulter turned to Nexis and the press. She found a Newsday story from 1990…….In a 1988 article titled, ‘Brutal Drug Gangs Wage War of Terror in Upper Manhattan,’ The New York Times reported that……

    Personally, I would like to have some actual court documents, so I go to PACER.

    This is very outdated. If an actual official DoJ Special Counsel report summarizing the results of a two year criminal investigation can rely for large chunks of its factual findings on footnotes referencing newspaper and magazine articles, then it seems a bit over the top to demand something stronger from Ms Coulter in an opinion piece.

    1. Since Volokh is a lawyer with actual standards (unlike Booker or Coulter, apparently), I expect him to go a few steps further in verifying the facts. That’s one reason I read his work rather than Coulter’s. News articles are _not_ reliable sources of information. We’ve all read an article about something that we knew, and it had errors; why believe that the other articles are any better? Court findings at least strive to be better, and are (supposed to be) based on actual evidence, presented by both sides.

      But there’s another problem with the news articles Coulter cited – everything she cites was “the police said” or “the prosecution said”. That does not distinguish between statements proved by evidence, assertions made without sufficient evidence, and lies flying in the face of contrary evidence – and cops and prosecutors _do_ lie and attempt to conceal the evidence of their lies.

      In this case, there’s a problem that the trial transcript is missing, so we don’t know how much evidence there really was, nor whether the defense made the prosecution prove their case, or just rolled over for a plea bargain. But the court filings Volokh found are still better than a news article.

  13. This is a comment about a blog about a story about a post about an interview about a guy.

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