The Cost of the Somali Pirate Cases
The Government unsealed an Indictment today against 14 young Somalis. All 14 are charged with piracy and other major crimes in federal court in Norfolk, VA (Eastern District of Virginia.) If convicted on the first piracy count, the sentence is mandatory life in prison. There is no parole. They leave prison when they die. The FBI press release is here.
All 14 men were charged with piracy, which carries a mandatory penalty of life in prison. In addition, the indictment also charges them with conspiracy to commit kidnapping, which carries a maximum penalty of life in prison, and the use of a destructive device during a crime of violence. The latter charge carries a mandatory minimum of 30 years in prison and a maximum of life in prison, which would run consecutive to all other charges.
The victims were two American couples, who were kidnapped while on their sailing vessel in the Indian Ocean. After being hijacked and kidnapped, the U.S. sent out some boats to talk to the kidnappers. Things did not go well, and the two couples were killed. The U.S. says they were killed by the hijackers, young Somali pirates. The U.S.boarded the ship and arrested and interrogated 15 of them. One was a juvenile who the U.S. says didn't play a role in the killings. They sent him home to his parents in Somalia. The rest were brought to Norfolk, Virginia, which is not where either couple lived or a place with any other connection to the offense.
The couple that owned the boat left the U.S. in 2004 and had been sailing around the world on their boat ever since.
The 2010 budget for 2010 includes $6.1 billion for the Bureau of Prisons and $1.4 billion for the Office of the Federal Detention Trustee (OFDT). Salaries for BOP correctional officers and staff are $3.6 billion, up $70 million from 2009 due to the increase in our prison population.
According to an April 27, 2010 memo from the Administrative Office of the U.S. Courts, the monthly cost of imprisoning a federal inmate is $2,271. For a year, that's $27,000 plus change.
For a 25 year old with a life sentence, assuming they live to 65 (life expectancy can be shorter in maximum security prisons), that's 40 years times $27,000, which equals $1,080,000 -- a million dollars.
If there are 14 such defendants in a single case, and all are convicted and sentenced to life in prison, that's $14 million just to house them. It doesn't include other costs, such as their lifetime medical care while in prison.
It doesn't include the cost of prosecuting them, or the cost of providing defense attorneys and expert services to those who are indigent.
Somalia and the Indian Ocean are on the other side of the world from us.
Why bring them to the U.S.? Why pay for the prosecution, defense and lifetime incarceration? Does anyone even remotely think this will have a deterrent effect on others in lawless Somalia, where kids grow up knowing nothing besides poverty and decades of warfare?
And why the Norfolk, Virginia? The feds have a history of bringing these cases there. In a recent case in 2010, in which all 5 defendants were convicted at trial and are awaiting sentencing, facing mandatory life sentences, (including one who claimed to be a juvenile), all unsuccessfully challenged the federal court's jurisdiction. Two unsuccessfully challenged the venue decision. One of their lawyers wrote in his brief, available on PACER, that prosecutors, in opposing the venue change, did not dispute the essential facts alleged by the defense, including:
(1) the charged offenses were not committed in the Eastern District of Virginia;
(2) the defendants who are Somali nationals cannot be tried by a jury of their peers in the Eastern District of Virginia because there is no sizeable population of Somalis; and
(3) the venire to be drawn from the Eastern District of Virginia will be biased and prejudiced against the defendants as a result of the extremely large proportion of active duty and retired members of the United States Navy which reside here and the heavy press coverage this case has received from the local news media.
So, there is no nexus between the Eastern District of Virginia and the charged crimes, the offense didn't occur there, none of the defendants had ever been there. There is no Somali population residing in Norfolk, (as there is in say Minneapolis and Columbus, Ohio).
The Government unilaterally chose Norfolk because it believed it offered the most favorable forum to their case. Given the "pro military" views of its residents, it's probably right. But is it fair?
The Sixth Amendment requires that a criminal defendant be tried by “an impartial jury of the State and district wherein the crime shall have committed.” Article III, section 2, clause 3 of the Constitution similarly provides that the trial of all crimes “shall be by jury; and such Trial shall be held in the State where the said Crimes shall have been committed.”
The brief continues:
However, it must be readily apparent to this Court that this District has historically been comprised of an extremely large percentage of its populace which is directly or indirectly affiliated with or has a relationship with the Navy. Various demographic statistics document this fact as well as the overwhelming public realization and perception of Norfolk as a pronounced and enthusiastic “Navy town”. Public pronouncements and statements readily acknowledge this fact and the Navy’s interests are regularly accommodated and encouraged by public officials. In fact, the local area can be said to be obsessed with pleasing the Navy’s interest and political and public decisions are regularly made in light of those interests and seeking to please the Navy. Because of this overwhelming support and bias expressed by the public at large on behalf of the Navy, elected public officials will essentially do anything to keep the Navy happy and to maintain its preeminent place in the local economy and area.
This overwhelming public identification and shared interests with the Navy is what makes the Eastern District of Virginia unique and different from any other district. No other district is so indisputably tied or linked to one government entity. ....
Because of its very demographics, perceptions and shared loyalties with the Navy, the government knew that this district would be the most favorable venue for them and give them the best chance to secure a conviction. That is why the defendants are being tried here – because the government feels that this district is biased in their favor and unlikely to be impartial.... Noticeably, the government’s response to the Motion did not dispute or even mention this point.
There is no other reason for this district to have been selected for this case. The charged offenses did not occur within this district. Jurisdiction lies in this district only because the government forcibly brought the defendants to this district for trial. They could have selected any district in the country, but they selected this district solely because of the widely recognized view that did this would be the district most favorable to the government.
The defense argued:
The Eastern District of Virginia has no specific relationship or nexus to these alleged offenses or acts other than this was the district to which the Government brought the defendants against their will and filed charges against them. However, the fact that the Government elected this district as their venue of choice does not definitively decide the issue of where the defendants should be tried. The government’s self-interest must be weighed and balanced against the countervailing fundamental right of the defendants to be tried by an impartial jury of their peers. It is submitted that any fair balancing must result in the conclusion that the defendant’s constitutional right to a fair and impartial jury of their peers substantially outweighs the government’s blatant self-interest in picking a forum which they deem to be tactically favorable to them.
And what about a jury of one's peers? The defense argued:
The Constitution requires that all defendants are entitled to an impartial jury of their peers. It is submitted that this inherently includes the right to have members of one’s nationality on the jury venire. It has been held that the first element of impartiality is that jury selection must be so structured as to present the possibility that the jury itself will represent a cross-selection of the community... While there may not be an absolute right to have proportional representation of one’s nationality on a jury, The Sixth Amendment does require that a defendant have a jury pool which is comprised of a “fair cross-section of the community.”
...The defendants are all natives of Somalia and lived their entire lives there. They have been raised and lived in a culture and country totally different from that which is enjoyed by people living in the United States. Their culture, country, upbringing, values, morals, religion and life experiences are all profoundly different from those experienced in this country. Thus, it must be deemed necessary as a matter of fundamental fairness for at least the possibility or opportunity that someone on the jury venire the jury to have had similar experiences. Only in that way can the defendants have the true “jury of their peers” upon which the Sixth Amendment is premised.
On pre-trial publicity and the media's constant referral to the defendants as pirates:
This trial will be perceived by many as an “us versus them” clash of cultures with the United States and the U.S. Navy being perceived as the victims of the evils of Somalia and the defendants who are from that country. That is exactly how the local media are portraying this case. The media has reported that the defendants were “bobbing in the high seas, seeking their fortune by pirating merchant ships traversing the dangerous waters off the Horn of Africa”, were “defiant” in entering their pleas, that the judge determined that they are dangerous and there “are no conditions the court could impose that would ensure the safety of the community” , that the defendants had “confessed” and had strong cases against them and that President Obama has declared that piracy off the coast of Somalia is a “national emergency.”
Such statements are not designed to report facts, but rather to distort and present a biased view of this case. The government claims that these stories have not contained information which has been recognized as prejudicial. ...However, portraying the defendants as “pirates”, as being so dangerous that no conditions “could ensure the safety of the community” from them, that the government has a “strong case” against them and that they had all “confessed” must be deemed to be prejudicial.
More on Norfolk as the Government's choice:
The government’s opposition to this Motion is based on their self-interest in having a jury venire which is prejudiced in their favor. That is why they unilaterally selected this district when the offense did not occur here and why they are opposing the requested change of venue.
Justice is supposed to be blind and impartial. “Shopping” for the most favorable forum is not supposed to be permitted although that is exactly what is occurring here. The government has selected this district simply because the venire is unique and is less likely to afford these defendants a fair trial. The nature of the community within the Eastern District of Virginia, and particularly the Norfolk division, is enthusiastically and unabashedly pro-Navy.
In this last case, the Court couldn't even find a Somali interpreter in Virginia. It flew one in from Minnesota. Was the discovery even translated for these defendants, who cannot read or write? How much time did they get to spend with their lawyers and the interpreter?
As to how the judge ruled and the outcome of this 2010 case: Motions for change of venue were denied. Motions to dismiss for lack of jurisdiction were denied. All went to trial, represented by court-appointed counsel. All were convicted and are now awaiting life sentences. Requests to retain the services of an expert on Somali culture to assist with sentencing mitigation were denied.
What are the conditions in Somalia? From a defense sentencing memorandum in the case:
Somalia has been in a state of near constant civil war since before 1991. Human Rights Watch, Harsh War, Harsh Peace: Abuses by al-Shabaab, the Transitional Federal Government, and AMISOM in Somalia, No. 1-56432-621-7 (Apr. 2010); Human Rights Watch, Shell-Shocked: Civilians Under Siege in Mogadishu, Vol. 19, No. 12(a) (Aug. 2007) (both available here).
There is no effective government, warlords reign, and the rule of law is non-existent. Hundreds of thousands of Somalis have perished from starvation and violence. The United Nations High Commission for Refugees estimated that, in 2009, there were 1.4 million internally displaced persons in Somalia and another 584,000 Somali refugees in other countries. Human Rights League of the Horn of Africa website, available here.
One attorney describes his client's upbringing:
[H]e has lived in a state of constant warfare for all of his life. This area saw particularly heavy fighting during the Ethiopian invasion in 2006. See Human Rights Watch, Shell-Shocked: Civilians Under Siege in Mogadishu, Vol. 19, No. 12(a) (Aug. 2007).
He has never been to school and cannot read nor write. ...His mother and surviving siblings live in a refugee camp in Mogadishu ... His father left the family some time ago and lives in the north. He worked as a shark fisherman, serving as a foreman for the boat’s owner.
....The nature of unlawful acts of aggression at sea off of Somalia is another circumstance that the Court should consider. First, fishermen are forced into supporting piracy. ...Second, aggression against vessels began as a defensive response to “resource pirates,” i.e., unlicensed, foreign fishing vessels that took advantage of the demise of the Somali coast guard and ability to enforce its territorial waters. See generally Adbi Ismail Samatar et al., The Dialectics of Piracy in Somalia: the rich versus the poor, Third World Quarterly, 31: 8, 1377 (2011).... “
For most Somalis defensive piracy symbolises the population’s feeble effort to protect the moral economy of their livelihoods. From their perspective it is not possible to separate defensive and ransom piracy from the depredation of resources piracy.” Samatar et al., supra, p. 1387. Somalis see resource piracy as a threat to their subsistence. Id. at 1288-89. “The action of ransom pirates offers a partial and temporary response to the plight of Somali fishing communities which have been ignored by the international community.”
Of course the conditions in Somalia don't excuse murder. The defense does not argue otherwise. It argues these are factors to consider in determining the length of the sentence. But the piracy offense carries a mandatory life sentence. In the event the conviction on that count is thrown out, the defense submits 210 months (17.5 years) is the appropriate sentence.
Five defendants, all in their young 20's, all with life sentences. $27,000 per year for 40 years for 5 defendants equals - $5,400,000.00. And that's just the cost of housing them. It doesn't include the cost of prosecution or defense or their medical care while in prison.
Now we have a new Norfolk case with 14 young Somali defendants, captured in the Indian Ocean, and flown to the U.S. for criminal prosecution. With the jurisdictional and venue issues already decided against them in earlier cases, with no local interpreters and no local Somali population to sit on their jury, their fate will probably be the same. $27,000 per year for 40 years for 14 defendants equals $15,120,000.00.
$20 million just to warehouse the defendants in two cases.
America. Prison nation. Your tax dollars at work. No money for health care, but we have billions to spend on incarceration, including tens of millions on young Somali men who never stepped foot in the U.S. until dragged here after their arrest across the world.
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