The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.