The story behind the sentence of Memphis Black Lives Matter activist, momentary mayoral candidate, lawful-then-unlawful-then-lawful-then-unlawful voter and person-with-a-lot-of prior-convictions, Pamela Moses, is ugly, convoluted and hard to follow. Was she an honestly confused person who sought only to register to vote as her probation officer certified she could, or a person who arrogantly flouted the chance to walk away and earned the sentence imposed as a result of her long history of engaging in criminal conduct?
Various permutations of the backstory are laid out in the New York Times and Washington Post and elsewhere, The facts of the case were disputed, but what was clear was that she had a long rap sheet of three prior felonies and a bunch of misdemeanors, voted at least six times since 2015, when she was last sentenced, despite being ineligible, and decided in her Shelby County case not to take a plea that would have let her escape another felony and prison, but to go to trial. She had what was arguably a triable case, but by no means a strong defense. Moses rolled the dice and found guilty by the jury. That’s how trials work.
Whether you think it’s wrong that people convicted of felonies should be denied the right to vote is a fair policy concern, but irrelevant. The law in Tennessee is what it is, and that’s the law. But did the trial and sentence of Pamela Moses present a prime example of the “trial tax,” a defendant being harshly penalized not for her crime, but for having the audacity to demand her constitutional right to a trial?
A Tennessee woman was sentenced last month to six years and one day in prison for illegally registering to vote while on probation. Given the nature of the offense, that punishment has been widely characterized as unnecessarily harsh by activists, advocacy groups, and the prosecutor who sought it.
There is little doubt that a sentence of six years for registering to vote while on probation is extremely harsh. And Shelby County District Attorney Amy Weirich did herself no favors with her flippant reaction to criticism.
One of these things is not like the other. But while Shelby County District Attorney Amy Weirich agrees that prison term isn’t proportional to the offense, she says it is justified for a different reason: the defendant, Pamela Moses, insisted on going to trial.
“I gave her a chance to plead to a misdemeanor with no prison time,” Weirich said in a statement. “She requested a jury trial instead. She set this unfortunate result in motion and a jury of her peers heard the evidence and convicted her.”
If Weirich’s quip captured the justification for going from a sentence of no time to six years, the sentence imposed on Pamela Moses would, without question, be an outrageous penalty to pay for exercising her right to trial.
Weirich’s statement came in response to a segment on Rachel Maddow’s MSNBC show. During that slot, the host compared Moses’ case to four other voter fraud cases centered around white Republican men who usurped dead relatives’ identities to vote for former President Donald Trump; three received probation, while the fourth served three days in jail. That’s evocative of “two justice systems,” said Maddow.
If the comparisons of Moses to others is fair, then it may well serve to prove the point, putting aside that these cases were in different states with different laws, different jurisdictions, prosecuted by different district attorneys and heard by different judges, all of which bears upon the outcome. Then again, Shelby County, Tennessee, has a long reputation of being unfriendly to defendants, in general, and black defendants, in particular.
In other words, Weirich’s statement was meant to rebut those claims: Moses, too, could have taken advantage of a good deal should she have wanted to. Yet that’s not necessarily the strong argument Weirich thinks it is, says Carissa Byrne Hessick, a professor of law at UNC Chapel Hill and author of Punishment Without Trial: Why Plea Bargaining Is a Bad Deal. “What’s stunning to me is that there is just no recognition by people inside the criminal justice system,” she tells me, “that sending someone to prison for six years for exercising their constitutional right isn’t equally problematic and disturbing.”
Was that why Moses’ sentence was so comparatively harsh? On the one hand, Moses “rolled the dice” and lost, The argument isn’t that she was wrongfully convicted, even if you disapprove of felon disenfranchisement, but that her case was tried to a jury and they found her guilty of TCA 2-19-109, False Entries On Official Registration Or Election Documents. She went to trial knowing that it was a “D” felony and carried a sentence of 2-12 years, enhanced based on the defendant’s prior convictions such that her minimum would be 4 years imprisonment if she lost.
But then, there were additional factors that Judge W. Mark Ward considered.
In addition to the three felonies, Moses had more than a dozen misdemeanors. In 2000, she had pleaded guilty to a felony of aggravated assault and eight misdemeanors, including harassment, perjury and assault. In 2014, she was convicted of misdemeanor theft.
Then, in 2015 she pleaded guilty to tampering with evidence and forgery, both felonies, and misdemeanor perjury, stalking, theft and escape.
According to court records she stalked a judge who had declared her in contempt of court, fabricated a judicial complaint form against the judge, forged a notary public’s signature and created a false notary seal to make the form appear official. She also jumped out of a police car on the interstate.
As prior criminal history goes, this is not insignificant, the sort of background that is easily glossed over.
In his sentencing order, Ward highlighted Moses’ prior criminal convictions beyond the three felonies, namely the misdemeanors. He added that she had a prior probation violation – she had missed mandatory check-ins with her probation officer. And he noted that she had committed the false entry voter registration crime while on probation.
He also considered the mitigating factor that the voter registration crime didn’t cause bodily injury.
What the judge didn’t consider, based on the sentencing order, was that Moses’ tampering conviction meant she was banned for life from casting a ballot.
Based upon her prior convictions, the judge found reason to believe that Moses was not inclined to lead a law-abiding life following this conviction.
One option before Ward would have been probation. But, in his order, he said Moses had committed many offenses while on bail or probation and that he thought it was extremely likely that she would reoffend. He said Moses criminal record showed she had a clear disregard for the law, so confinement was necessary.
Ward also said Moses lacked candor in her testimony.
Nonetheless, Judge Ward stated that he would consider reducing the sentence to probation after nine months if she “stayed out of trouble” in prison.
“I gave her a chance to plead to a misdemeanor with no prison time,” [Weirich] said.
If no prison time was sufficient on a plea, and nine months if she “stayed out of trouble,” to address both Moses’ current offense and past history, then a sentence of six years certainly suggests that she’s paying a Draconian trial tax. But at the same time, comparing Moses to others who voted illegally, and glossing over the fairly damning background Moses brought to sentence, makes her a particularly poor example of both the trial tax and “two justice systems.”
It’s “utterly typical and common,” says Ken White, a partner at Brown White & Osborn LLP and the man behind the popular “Popehat” Twitter account. “Prosecutors have vast power to make decisions about who gets offered what deal, and, as a result, can put people in a position where they’re choosing between admitting to something they didn’t do, or giving up defenses and facing a much longer sentence.”
This is certainly correct. But given the specific circumstances of Pamela Moses’ case, this might well be a better example of why plea bargaining is necessary to provide a defendant with a safety valve against the likely sentence after trial. She could have chosen a misdemeanor and no prison time, and didn’t. If that option wasn’t available, Moses would have had no option but to go to trial and, upon being found guilty, be sentenced to six years. Would that have been any better? Would that have silenced the criticism?