CRIMINAL JURISDICTION

Unpopular Judge Deserves Humane and Fair Treatment While in Federal Custody

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

Last year former U.S. District Court Judge Samuel Kent pleaded guilty to an obstruction of justice charge and received a 33-month sentence. He was committed to the U.S. Bureau of Prisons. Kent’s attorneys, Dick DeGuerin and Sean Buckley, recently filed a comprehensive motion in the U.S. District Court for the Houston Division to vacate and correct his prison sentence because of the physical and psychological abuse he has endured at the hands of federal prison officials. The abuse includes being mislabeled a “sex offender”—a status which precludes him from participating in certain substance abuse counseling programs—and being held in harsh solitary confinement while being transferred from one federal or state penal facility to another.

The federal prison system can be a brutal place, particularly if the inmate is a former law enforcement official and especially if he is a former federal judge. DeGuerin’s motion, according to Hair Balls blog of the Houston Press, charged that “contrary to public interest, the Federal Bureau of Prisons has subjected Sam Kent to abusive psychological and physical conditions that have jeopardized his ongoing recovery from depression and alcoholism.” The motion added that on the very day that Kent formally resigned his position as a federal judge (and gave up his pension), prison officials placed him in a “filthy, completely empty cell” (commonly called “admin seg”) where the “temperature was kept at 60 degrees” and with Kent “wearing only a smock and carrying only a single sheet.”

Cold is an extreme form of torture. Prison officials routinely place inmates with severe emotional and psychological problems who engage in disruptive behavior in “admin seg” cells where the temperature is deliberately kept low to make them as uncomfortable as possible. A concrete slab is the only bed in these cells. An inmate is sometimes (not always) given a sheet or a thin blanket used to cover the slab or himself. He is clad in either a sheer-like “smock” or what is called a “paper gown.” Inmates are frequently kept in these torture-like chambers for days, weeks, and even months, depending upon the level of disruptive behavior they have engaged in. The only relief, if any, comes when “pill call” arrives and a medical technician dispenses heavy dosages of psychotropic medication in a futile effort to quell the curses and screams and protestations against the physical abuse.

While these cells are generally used to remove and isolate “psychotic” inmates, they are frequently used against certain inmates “to get their mind right.” It is designed to not only destroy their personal self-esteem but break their will as well. The famous line spoken by the warden in the old “Cool Hand Luke” movie describes the process: “Luke, what we have here is a failure to communicate.” Many people may feel this is appropriate treatment for a former federal judge who built a reputation, earned or not, as being a tyrant in his courtroom. We refuse to bite into that tempting jelly-filled donut. Accepting DeGuerin’s motion as factual (and we have no reason to doubt its merit), we find it not only disturbing but downright offensive that some of the most dangerous and violent drug lords, who have cut deals with the federal government to “spill their guts,” are receiving better treatment from federal prison officials than Sam Kent. When ruthless drug cartel leaders are given preferential treatment and held in higher regard by federal prison officials than a former federal judge, then our federal prison system has become so skewed that legitimate penological objectives are impossible to achieve in it.

We are mindful that all do not share our view. In the “Letters” of the City & State section of the Sunday Houston Chronicle (Aug. 8, 2010), some Houstonians put on such an “over the top” display of vitriol and hostility against Sam Kent as to be downright unseemly by even the harshest Texas standards of “punishment and justice.” One letter writer expressed his feeling this way: “Let’s look at this from his victim’s standpoint. Kent was impeached and convicted of obstruction of justice related to having an unwelcomed sexual contact with two female employees. His complaint states that he was forced to hear the screams of another inmate being raped and forced to do calisthenics in the nude. It sounds to me like justice is being served. Maybe now he understands the fears of his victims. Let the punishment fit the crime.”

You can go to the proverbial bank with this suggestion: if this gentleman, or any of his family members, suddenly became entangled in our criminal justice system and was carted off to prison, he would be the first in line to demand “fair and humane treatment” when forced to do “calisthenics in the nude;” he would be the first to cry, moan, and complain to prison guards to “let me out of here” when forced to hear the screams of another inmate being raped;  and he would be the first in line to call his lawyer when forced to spend 30 days in an “admin seg” cell clad only in a paper gown and made to sleep on a concrete slab with only a sheet for warmth in 60 degree temperature. “They can’t do this to me,” he would whine to family members during high security visits.  This letter writer, and people who share his views, believe that “the punishment [should] fit the crime” so long as it does not apply to them.

Another warm-hearted letter writer had this to say about Sam Kent’s plight: “It is amazing after many years of sending people to jail he never cared what happened to them. But now that he is in jail, Kent is complaining of the rough treatment. What a crybaby. I guess he thought he would receive preferential treatment as a judge. Wake up, Kent. Face your punishment like all the others. Don’t do the crime if you can’t do the crime.”

It’s hard to fathom what news reports this gentleman read to derive at the conclusions he expressed in his letter. Kent’s motion does not complain about “rough treatment.” It complains about unwarranted and abusive treatment—“punishment” which is selectively being imposed on him and not being imposed on “all the others (inmates)” as suggested by the letter.

Samuel Kent is being physically and psychologically abused, even tortured, not because he has violated some prison rule or engaged in some kind of disruptive behavior to incur such treatment. He is being mistreated for no other reason than he was once a federal judge—a man who had a sworn duty to send lawbreakers to prison. Is he now supposed to be punished for doing precisely what society not only expected but demanded that he do: punish those who wronged society by breaking the law?

We do not to run “gulags” in this country. Our prison systems are bound to operate under the constitutional rule of law. The U.S. Supreme Court has long made it clear that while lawful imprisonment imposes restrictions on individual freedom and constitutional rights, a prisoner in this country still retains those “substantial rights” which are compatible to the objectives of penal incarceration. For example, prisoners retain the fundamental right to marry; they have due process rights to be free from disciplinary restraints which “impose atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life;” they retain 8th Amendment protections to be free from cruel and unusual punishments; they retain a First Amendment right to have access to the courts; they retain 14th Amendment rights not to be subjected to disciplinary action without being afforded procedural due process of law; they retain a First Amendment right to free exercise of religion; and they retain a 14th Amendment right to equal protection under the law.

And prison guards do not enjoy a “license to torture inmates” as Kent has alleged they have done to him with forced calisthenics in the nude until exhaustion and the unwarranted isolation in “admin seg” under physical and psychological debilitating conditions. Whatever public animosity Sam Kent may have generated by his conduct as a federal judge, either in the courtroom administering “justice” or through the “unwelcome sexual contact” he imposed on female court personnel, he should not be forced to endure the blatant unconstitutional treatment he is currently being subject to at the hands of state and federal prison officials.

We are not talking about legitimate penal “punishment” which is inherently attached to lawful incarceration. What we are talking about here is rogue prison guards inflicting their own personal class and racial bias against a former federal judge simply because they have the “power” to do so. And to all those who are in the “cheering section” with horrendous online “comments” and “letters” to the editors rejoicing in Kent’s suffering, we would only admonish that “but for the grace of God, there go I.”

We certainly hope that the court will grant Dick DeGuerin’s motion. The Government had clearly breached the plea agreement in the Kent case. The former judge did what was expected of him: he accepted responsibility for his conduct with a guilty plea; he resigned his lifetime federal judgeship appointment; he gave up his pension; he has abided by all prison rules and regulations; and he had sought treatment for a longstanding substance abuse problem. And what has he received in return?—physical and psychological abuse; physical torture; repeated transfers from one penal facility to another; and labeling as a “sex offender” when he plead guilty to the crime of obstruction of justice.

Former U.S. District Samuel Kent deserves his fair day in court, no matter how unpopular that may be with some folks. Justice is not a popularity contest. It is about doing the right thing. Sam Kent has not been treated fairly—and that’s our opinion in this matter.

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair