THE VIRGINIAN-PILOT
Copyright (c) 1994, Landmark Communications, Inc.
DATE: Sunday, December 18, 1994 TAG: 9412200528
SECTION: FRONT PAGE: A30 EDITION: FINAL
SOURCE: COX NEWS SERVICE
LENGTH: Long : 209 lines
Andre D. Carter choked and raped a cocktail waitress in his Colorado Springs apartment. He went to prison but still was paid $20,788.
James R. Lee sodomized three teenage boys in Illinois, and he was paid even more: $85,997.
Rodney G. Templeton molested a 4-year-old girl in the basement of a Dayton, Ohio, church, where the two had gone to hang choir robes. He was paid $148,616.
Carter, Lee and Templeton were paid by U.S. taxpayers.
They didn't work for the money. They didn't need to. They committed their crimes while in the U.S. armed forces.
They are among hundreds of convicted murderers, rapists, child molesters and other criminals paid by the armed services long after being locked away.
An examination of payments to military convicts found that in just one month, June, the military spent more than $1 million in pay and benefits to more than 680 convicted criminals.
Some got pay raises behind bars.
Most of Congress was unaware the military paid prisoners. Even the military had no idea exactly how much it paid. The payments were calculated by using military computer records.
``Any type of pay to convicted criminals is wrong,'' said District Attorney John Wampler of Altus, Okla., after learning a service member from his area was paid despite a 1992 manslaughter conviction. ``It offends me that the federal government would compensate the person after they've been sent to prison.''
Had Carter, Lee or Templeton worked for nearly any other public or private employer, they would have been fired and lost their salaries. But the U.S. military, supporting a tradition dating to the old West, believes if it sends soldiers and sailors to prison it should, in many cases, pay them.
Their victims aren't so lucky. Several were left without a dime to pay medical expenses, while their attackers got paychecks to pay bills, start a business or even buy stocks.
While the military kept paying Carter, she said, the waitress's boss cut off her pay because she could not muster the courage to return to her job, where she had met Carter.
At the military's maximum-security prison at Fort Leavenworth, Kan., 405 prisoners, or 30 percent of the prison population, were allowed by military courts to keep their pay up to several years.
Besides the pay, the military gave to the dependents of those inmates, and to the dependents of many others throughout the country, free medical coverage and 20-30 percent discounts at base stores.
Those who got checks included 164 child molesters and child rapists, 58 other rapists, 11 convicted of attempting murder and seven convicted murderers.
They include people such as Air Force Sgt. Rossel Jones.
Jones chased his wife around their apartment at Holloman Air Force Base, N.M., with a knife, stabbing her several times as she warded off the swinging blade with her hands.
``That's how my fingers and hands were cut,'' Deborah Jones told an Air Force investigator the day after the Oct. 7, 1991, attack. ``When Rossel stabbed me in the neck, I managed to bend the knife and take it away.
``. . . I fell down and passed out. When I awoke, Rossel was hitting me in the head and body with a table leg.''
Jones was convicted nearly three years ago, but the Air Force still pays him $1,152.90 a month.
From inside the prison, Jones watches his government pay grow.
``I follow the stock market,'' said Jones, who reads stock and mutual fund listings in the Wall Street Journal and USA Today. ``I buy Double E Bonds.''
Paying convicted criminals is just one anomaly in a criminal justice system filled with anomalies.
At courts-martial, the military's version of trials, a defendant is not judged by peers; he's judged by superiors, mostly officers. That panel, which averages about nine but can have as few as three members, does not have to agree; A two-thirds vote convicts. Panel members don't elect a foreman; it's the highest-ranking officer.
And just about every step in the justice process is subject to approval of the defendant's commanding officer, who often is not a lawyer.
No one knows exactly how long the military has paid criminals.
Col. Charles Trant, a military law historian and the Army's chief criminal attorney, said the first formal summary of the policy was written in 1880. Soldiers served in remote outposts and when they were sent to jail, their families needed money to return home and resettle.
``The rationale is the same one we use today,'' said Trant, who conceded the practice is outdated. ``It was quite a different Army then.''
Most state and federal benefits, so-called entitlements, are cut to people in prison. The federal government cuts the bulk of a defendant's Social Security benefits at conviction. It even cuts off workers' compensation to federal employees convicted of felony crimes.
The military cuts off pay and benefits, too, when an employee is being jailed by civilian authorities.
When Colorado Springs police arrested Carter for rape and held him pending action by military authorities, the Army stopped his pay.
But after Carter was transferred to an Army jail, his pay started again, as if he were back on duty.
In the U.S. military justice system, every defendant, even ones caught professing their guilt over bloody corpses, are paid until the first automatic appeal in their case is decided.
On Nov. 9, 1991, a mother told military police at Wright-Patterson Air Force Base that Sgt. 1st Class Claudio Smith-Esminez molested her 7-year-old daughter several times while baby-sitting.
The military's investigation took 20 months, during which time Smith-Esminez earned his full pay of $2,031 a month, plus housing and food allowances.
``We had all these pretrial meetings. She had to keep talking about it,'' said the girl's mother, who lives in Dayton.
On July 12, 1993, Smith-Esminez was convicted of molesting the girl four times, and his rank was reduced to the lowest in the military, E-1, with a salary of about half of what he had been earning.
Still, Smith-Esminiz got all his pay because military convicts receive full pay until their first appeals are decided by commanders. Smith-Esminiz' first appeal wasn't decided until March 1994, eight months after his conviction and 28 months after authorities began their investigation.
Smith-Esminez's pay didn't stop after his first appeal.
In fact, Leavenworth records show he could get paid until Dec. 14, 1995, when his enlistment expires.
In the military, criminals' sentences determine whether they are paid after first appeals. The court can order that some, all or none of the prisoners' pay be cut.
The court cut Smith-Esminez's rank, but it didn't take away any of his pay, so he continues to receive more than $800 a month, the amount entitled to him under his new, lower rank.
Inmates can have their paychecks sent to the bank or address of their choice.
The severity of the crime - with the exception of murder - seemed to matter little in determining who got paid.
Army Lt. Timothy L. Jenkins lost all his pay and was fined $15,000 at a court-martial at Leighton Barracks, Germany, last year. His crime: writing thousands of dollars worth of bad checks.
Senior Airman Samuel J. Carter sold drugs and was picked up for attempted theft. At a court-martial at Bergstrom Air Force Base, Texas, he lost all his pay, too.
Col. Lee, however, kept his pay, despite a conviction last fall for 18 counts of indecent acts with teen-age boys from Illinois. More than a year after his conviction, Lee still receives $6,618.30 a month, more than what 98 percent of all Ohio families earned in 1990.
Sgt. Edward Higgins kept his pay, too.
He was convicted in 1992 of five counts of molesting young women who came to his Air Force recruiting office in Youngstown, Ohio.
``He asked me if I had been checked for scoliosis,'' a 18-year-old woman told a military court in 1992. ``He told me to drop my pants 3 to 4 inches below from where they were from my waist and bend over and pull up my shirt.''
Higgins told another 18-year-old to take off her jumpsuit, and then he ran ``his hand up and down her back from her neck to her buttocks,'' the woman told military authorities.
``He said he had to get a measurement of my body fat,'' the woman said during an interview, adding that she decided not to join the military after the incident. ``We all felt so stupid because we fell for this guy.
``Why should he get paid? . . . That's ridiculous. I can't believe it.''
Since he was convicted and sentenced to four years in prison, Higgins has earned $25,499 from the Air Force.
In his appeal for pay and a light sentence, Higgins's attorney asked the court to consider ``his family, his wife, his three young children . . ., all the Saturdays that his boys wouldn't be able to go to McDonald's for this special time with their father.''
The prosecutor made a different plea. ``While he's in jail, he shouldn't be paid. He's no longer a productive member of the Air Force . . . It's not the Air Force's responsibility to take care of his family.
``It was Sgt. Higgins's responsibility. And when he decided to do what he did over that period of time, he reneged on that responsibility.''
The court sided with Higgins.
The Dayton Daily News examined dozens of court-martial files and found that, in every case, defendants who received pay had families.
``Very frequently our court members (who function as jurors) would say they didn't take pay in the case because they didn't want to take it from the family,'' said Keithe Nelson, a former two-star general and chief military attorney for the U.S. Air Force.
Jurors are not supporsed to award pay based on family needs, but they do.
``There's nothing in the Code of Military Justice that allows that,'' said Nelson, who is now administrator of North Dakota's court systems.
Paying any convicted criminal, regardless of the reason, is a questionable practice, said Nelson, a military attorney for 33 years. ``In crime, one is accountable for their own acts.''
Even when a military court is so outraged by a crime that it cuts all pay, even when the convict has no living relative to support, a service member still can earn his full military paycheck for years.
The military didn't want Army Sgt. Ronald Webster to get paid, but he got his money anyway. In 1982, Webster was convicted of rape, burglary, assault, resisting arrest and 10 other charges involving an attack on a fellow soldier in her barracks at Fort Story in Virginia Beach.
He was sentenced to lose his pay, $965.70 a month, but four years after his conviction, Webster said, the military found an error in his case.
The error did not earn Webster a new trial, or prove his innocence, but it did earn him the right to resubmit his case for clemency. So the military, he said, paid him four years of back pay.
``I think it was about $38,000 to $40,000 after taxes,'' said Webster, who was released from Leavenworth Nov. 18 and now lives in Cincinnati.
Military members who win certain types of appeals, even years after trials, can receive full back pay for the time it took to appeal the case.
If a defense attorney can't find a reason to appeal a case, lawyers working for the highest court for military appeals will try to find one for them. Unlike other civilian appeals courts in the country, the military's highest appeals court pays lawyers to search cases for legal errors, even when appeals are not filed.
And in case both a defense attorney and the appeals court can't find errors, convicts at Leavenworth can search for themselves, using the prison's 6,000-volume law library.
``Lawyers have told us we have a better library than they have in their offices,'' Army spokesman Staff Sgt. Alvah Cappel said as he showed off the prison's facilities during a tour this fall.
``I think I deserve the money,'' Webster said. ``That's the way the system works. They've been doing it for years.'' It's a whole different kind of system.'' by CNB