The Jury Talks Back


What’s it Worth?

Filed under: Uncategorized — JRM @ 7:29 am

One of the fairly common issues facing those in the criminal justice system is, “What is this case worth?” How much time should the defendant serve?

We end up with a somewhat standardized (though flexible depending on conditions) view on standard cases, though lots of cases are non-standard. I occasionally survey my colleagues on what a case is worth.

So, here are two scenarios. For each, assume you are the judge and the defendant has pled guilty at an early stage. For a jail or prison sentence, you can impose the exact amount of time a person will do (two years is two actual years in custody.) If you sentence to a year or less, you can also attach whatever terms you like; for more than a year the prison authorities will do that. You can sentence to any amount of time you like for the purposes of this exercise. You must sentence to a specific amount of time, or life without parole.

Please give your proposed dispositions before reading the other comments. (This is important; I do this in my real life surveys, too.)

Situation one: The recidivist. Steven, 55, likes heroin. He does not like working. Working isn’t fun. Steven steals for heroin, and from the ages of 21 to now, has been in custody, on probation, or on parole for all but three years of his life. He has been convicted in the past of six separate cases of residential burglary, four cases involving possession of drugs, two counts of possession of heroin for sale, and some DUI’s and other miscelleaneous misdemeanor offenses, including thefts from stores early on before he switched to the more lucrative residences.

Steven’s last case was a residential burglary he committed 12 years ago; he served right about 12 years and lasted a week on the street before he was caught stealing cold medication from a drugstore (the case you are sentencing him on). He says he was going to exchange the cold medication for heroin. (He also rather suspects the recipients were going to use it to make methamphetamine, but that wasn’t his concern; he just wanted heroin.)

Steven says he is an addict, and does not deserve a lengthy sentence because he is non-violent. He ain’t never hurt anyone. The prosecution says that Steven doesn’t do well outside, so he shouldn’t be outside any more.

What say you?

Situtation two: Youthful offender While this is a story about three friends, the guy we’re really interested – since you’ll be sentencing him – is Marcus, 19. Marcus, Joey, and Juan are all freshmen at State University in Middletown. Marcus has no record.

They are all hanging out one night. “I’m bored. Bored, bored, bored,” says Juan.

Joey says, “I’m bored too. Let’s go rob some people!”

Marcus says he doesn’t like the personal robbing part, but he’ll drive the guys around.

The first guy they see is a 22-year-old guy with an Ipod. Ipods not being boring, Joey and Juan get out of the car and tell the guy to give them his Ipod. When he says he wants to keep it, Joey pulls out a .45, which is persuasive.

Marcus wasn’t aware that they had a gun before, but they then go and rob three more people of cell phones, Ipods, and wallets that night. By the time of the fourth robbery, approximately every police officer for 20 miles is patrolling the area with a description of the car, and they end up getting pulled over and arrested. Police find Joey’s gun in the trunk, and it is loaded.

Marcus admits that he shouldn’t have done this, but he says he was only the driver and didn’t think before getting arrested. He is distraught in court and says he will testify truthfully against the others. (The prosecution didn’t make a deal for the testimony because the other guys are caught dead to rights.) Marcus’ mother is also there and says Marcus was doing very well before getting in with this crowd.

The prosecution says armed robberies lead to fear, disorder, and corpses. Once Marcus knew there was a gun, he’s endangering lives and should go to prison for a long time. Even assuming the dubious proposition that Marcus has learned anything, others need to be restrained from participating in armed robberies.

What say you?


  1. Situation 1: Throw away the key. The guy obviously fails at life outside prison. At some point he’s going to be robbing a house while high, and kill, assault, or sexually assault someone. While you can’t sentence someone on what they MIGHT do, I would feel justified in locking him away based on his mere 3 years outside the system since turning 21.

    Situation 2: he should serve some time at least. “Lets rob someone”? His answer was “No, i don’t wanna… But if you guys do, I’ll drive you there, wait, and bring you back…”?

    Kid’s a) an idiot and b) unable to ACTUALLY think for himself. I don’t have a single friend that could say “I wanna rob someone” whom I would then help out. There a few I’d help move a body for, but only in certain situations.

    He knew that violence was likely or at least possible. If not a gun, then at least someone was likely going to get beat up. He knew full good and well a crime was going to take place, and he went along anyways. I have no sympathy for this kid. None.

    Comment by Scott Jacobs — 12/17/2008 @ 8:10 am

  2. Thanks, Scott.

    For situation 2, can you give a specific amount of time you’d sentence to?


    Comment by JRM — 12/17/2008 @ 8:28 am

  3. Defendent # 1 should go away for life. Back in the day guys like Marcus got 5 years in prison or the opportunity to enlist in the USMC for 4 years and make something of himself. Unfortunately I believe this is no longer an option. Some of my most outstanding Marines arrived in the Corps by this method.

    Comment by jack — 12/17/2008 @ 8:35 am

  4. Situation 1: At this point “as long as the law allows.” If this guy gets out, he’d going to rob, cop a fix and if necessary hurt someone, all in the first few hours out. I’d really like to think he’s going to (finally) seek help to end his addiction, but he shows no interest and so I show none. Frack him. Chances over.

    Situation 2: How drunk was he? NOT a candidate for probation unless he was stupid drunk. Then again, he was driving….

    If he did this cold sober AND he got into college, then he’s dangerous, not stupid or impaired. In which case he either needs jail time or mental hospital time. Certainly there was a psych eval; this would tell me where he should go, but go somewhere he should. A year of two this time; minimum to medium security.

    Comment by Kevin Murphy — 12/17/2008 @ 8:40 am

  5. 1. Steven: Life.
    2. Marcus: Five years, suspended; 5 years close probation, with the condition that one of those years be spent in county jail.

    The problem with these responses is that the assumptions on which they are based are unrealistic. In California, state prisoners (like Steven) are being let out early because there is no room in the penal system for them to be housed and treated in the way that federal judges think they should be. Which, in my view, is (as in Steven’s case) better than they would live on the outside.

    Comment by Richard Nichols — 12/17/2008 @ 8:53 am

  6. at LEAST a few months, JRM.

    But if he wanted to offer up going to USMC bootcamp, I’d be ok with that. But I would suspend the sentence. “Kid, you have one year. Either you’re serving in the military by the end of that year, or you go to prison for a year. Don’t dick with me, son…”

    Comment by Scott Jacobs — 12/17/2008 @ 8:55 am

  7. JRM,

    If I may jump in with you and Scott?

    The 3 strikes laws have been very effective in getting people like #1 off the streets permanently, much to the Liberals’ dismay.

    On person #2, I would say 3 years hard time or a 4 year hitch in the Marines. I would further stipulate that if this cretin washes out of boot camp or gets discharged for other than 100% disability from combat inflicted injuries, that he go to prison immediately to finish what time is left of the 3 years hard time.

    Scott, since the times of Carter and Clinton, the armed forces aren’t what they once were. I had a late friend who served, “Old Corps”. He said the modern Marines weren’t up to snuff, and the other services were wusses in comparison.

    You can wash out and your contract voided. Back when cretins had the choice of the Marines or jail, you didn’t get out of service for turf toe. You served the full hitch. If you didn’t get the MOS the recruiter marked you down for, tough nuggets.

    Comment by PCD — 12/17/2008 @ 11:59 am

  8. William the junkie needs to go to prison for 8 years. He isn’t reformable, so he needs to be aged until he doesn’t commit as many crimes. Sad case.

    The kid, Marcus, needs to go to prison for five years. It’s a stiff sentence, but it’s a violent crime. He didn’t stop it, but he didn’t think of it (or I’d have him in prison for ten years).

    Comment by Juan — 12/17/2008 @ 1:35 pm

  9. PCD, our military is not the place for criminals. It’s unfair to the good people in the military to make them clean up society’s messes.

    I also really hate it when people suggest veterans went in at the order of a judge (which never happens anymore because it is illegal)..

    I do think a stint in the military ought to clean anybody up, but it really doesn’t. Plenty of Marines screw up, and a kid like that probably doesn’t deserve the honor of serving his country, learning about weapons, and all that.

    In fact, I would bar him from serving in the military (and I think, having committed a felony, the USMC would agree with me).

    Comment by Juan — 12/17/2008 @ 1:38 pm

  10. Situation #1. Incarcerate him for the rest of his life. He’s 55, well before this age he should have altered his behavior . He’s a recidivist and will not likely change his habits at this late stage. As a bonus, after a lifetime of drug abuse, he won’t live very long.
    Situation #2. Incarcerate him for at least 5 years. He joined with his buddies to commit robbery. After finding out it was going to be armed robbery he continued to participate. He may be intelligent enough to get into college, but, is devoid of the moral judgment to understand that boredom is not an excuse to perpetrate any crime. Further his judgment did not preclude him from participating in armed robbery. His intelligence coupled with a lack of morals is dangerous. In my opinion this one is one more strike away from lifetime confinement.

    Comment by Edward Lunny — 12/17/2008 @ 1:47 pm

  11. I also really hate it when people suggest veterans went in at the order of a judge (which never happens anymore because it is illegal)

    Even though it was common place up through at least Vietnam?

    Comment by Scott Jacobs — 12/17/2008 @ 1:52 pm

  12. Can’t sentence Steven to life for shoplifting. Since my limit for being able to be creative is 1 year, I’d say 364 days incarceration, plus 20 hours a week for two years working in some capacity where he sees the destruction up close that drugs do. Plus random drug testing. Violation begets castration. Ok, incarceration, although the former would be a better incentive to stay clean.

    Marcus needs to do time. I’ll concede that he probably learned a lesson. Good. It’s time for the “pay the price” part. Three years. Long enough to be punishment, short enough that he can pick up and get on with a (hopefully) productive life.

    Comment by Chris — 12/17/2008 @ 2:21 pm

  13. “Please give your proposed dispositions before reading the other comments.”

    OK. I composed my answer in MS Word before seeing any other comments.

    Recidivist Steven: His activities have a very significant risk of causing severe injury to someone. It’s obvious that a DUI incident can kill and maim many people. A residential burglary could result in Steven or his victim’s being injured in a self-help situation. His involvement in meth manufacture creates other dangers. (Yes, he is involved in meth manufacture. He could have stolen even more valuable things from the drugstore.

    Nevertheless, Steven is a victim of a disease, even though a self-imposed disease. He has been caught often enough that he certainly knows crime will land him in prision, yet the allure to him of heroin overcomes any concern that he will be imprisoned.

    I wonder if heroin is available to him in prision.

    “If you sentence to a year or less, you can also attach whatever terms you like . . . .”

    With all the foregoing in mind, I would sentence Steven to a year in prision with these conditions: Steven must spend the entire year in detox and work training programs. I hope that he has family that cares about him, but I would not count on it.

    Youthful offender Marcus: His activities also created a huge risk of severe injury to someone. However, he is literally a young adult. I’d rather keep him out of the prison system.

    I would sentence Marcus to 6 months house arrest, with his being let out solely to work on mundane municipal projects, like cleaning trash from streets and highways and removing graffiti.

    Even though Joey seems to be the worst of the lot, I would give him the same sentence if he has no prior record. (I think juvie records should be available consideration of sentencing an adult.)

    Comment by Ira — 12/17/2008 @ 5:28 pm

  14. Steven gets the maximum. A misdemeanor theft is a felony with a previous theft conviction. Three years, in Illinois. The prosecutor should try for burglary, too, on the theory that an otherwise lawful entry onto the premises became unlawful when the defendant entered with the intent to commit the theft. Seven years. It’s worth making the effort.

    Marcus is in trouble. The problem is that the sentences for the three cannot be too *disparate*. Three years less than the sentences his co-defendants get is about all that would be tolerable.

    Comment by nk — 12/17/2008 @ 5:42 pm

  15. Recidivist–15 years imprisonment. He will be 70 at the end of a 15 sentence. Few septuagenarians commit crimes.

    Youthful Offender 5 years Imprisonmnent, Sentence suspended on condition he serve 1 year in jail. I think he is salvageable, but needs to understand gun crimes lead to jail.

    Comment by Stu707 — 12/17/2008 @ 6:54 pm

  16. Scott Jacobs, I’m very sad to say that this simply is not the same nation as pre Vietnam USA. The way we treat crime, and crime itself, has evolved quite a bit.

    All drafted soldiers in Vietnam or at any time are heroes and deserve respect. I know great men who fought in Vietnam because their nation demanded they do so.

    But this is a different age. Our military needs great, smart, honest people. It should and does reject most felons. The personal sacrifice of serving today is underminded in the eyes by those who wonder if troops were coerced to make that sacrifice as a second chance.

    And it’s illegal (though that’s not a problem for a hypo). If we can change the laws, I’d give the old junkie an unlimited supply of methadone until he self terminated, and I’d put the college boy in hard labor until he earned enough money to pay for his incarceration and the education of five non criminals. At the same time, I’d give the college boy an education from behind bars at the public expense.

    We could have a corps of workers who serve the nation as a second chance, and we could even send them overseas to build schools or bridges for the military. But the honor and courage needed in our military is different now than it was in the 1950s. They should reject felons.

    Comment by Juan — 12/17/2008 @ 7:22 pm

  17. Under California law, the recidivist is supposed to get 25 years to life. (What would happen in L.A. is anybody’s guess. In many courthouses he might get 32 months.) I think life is appropriate; he’s doing it already; just on the installment plan.

    The “youthful offender” would get around 6 years from me. This isn’t one robbery; it’s a crime spree, and a gun was involved. If it went off and someone died, he could be on the hook for murder.


    Comment by Patterico — 12/17/2008 @ 8:27 pm

  18. I should add a couple of things.

    On the first guy, I’m prejudiced by, well, the law — which says 25-to-life is the appropriate sentence. But if it were not for the law, 5-10 years would seem fine, just on a gut “what is this worth?” sort of level. Again, in L.A. the guy probably gets even less than that.

    I have handled actual cases very similar to these two situations.

    One, a repeat burglar who had committed about 4 residential burglaries and whose current offense was a commercial burglary — walking out with some cases of soda or something ridiculous like that. The guy had never been out of custody for even a year. This was back in the day (around 1999) when local policy more closely mirrored state law, and such people got 25-to-life. The guy is still serving his 25-to-life sentence.

    I also handled a case similar to the second situation, with a youthful offender with no record who was the driver in a single armed robbery. He is serving a four-year sentence; had there been several other robberies, the sentence would have been harsher.

    Comment by Patterico — 12/17/2008 @ 8:49 pm

  19. You know, I didn’t really focus on the “pled guilty at an early stage” part. Defendants like that can potentially get points for taking responsibility.

    It wouldn’t outrage me in situation #1 to give the guy 5-10 years if he pled. Tough call, though. Who pleads to a possible 25-to-life sentence? It’s just a weird question.

    On the second guy, if he pled, I could see giving him 5 years instead of 6. Maayyyyybe 4 if he put together a realllly compelling presentation about his life, his prospects, and why this was an aberration. Probably 5, though.

    Comment by Patterico — 12/17/2008 @ 9:00 pm

  20. 1. A chain gang for 1 year. After release, any failed drug test ( taken weekly ) puts him back on the chain gang for 2 years. End the parole after 5 years of clean living…which isn’t likely to happen.

    2. 5 years hard time.

    This is with taking the hypotheticals at face value where in reality, I wouldn’t be inclined to believe certain claims they made regarding their criminal intentions.

    Comment by jcurtis — 12/17/2008 @ 9:31 pm

  21. Situation one – Steven is a multiple offender, and a drug addict on top of that. Letting him out or on probation is almost a guarantee for him to do something more serious. Sentence – 15 to life, based on his previous multiple arrests and convictions.

    Situation two – Marcus has no priors, but made a huge mistake by playing driver, while his buddies were stealing, and waiving around a .45 while committing crimes. Even though he was willing to cooperate with the prosecutor, he should have stood up and backed out when his buddies started waiving around the gun. Sentence – 3 to 5 years in jail.

    As a retired serviceman and recruiter – felony convictions or crimes involving physical violence make it next to impossible to enlist in the military. Even abuse of certain drugs (opiates and multiple incidents of cocaine abuse) can bar a young man or woman from enlisting or being a commissioned officer. The old days of the judge saying “Join the military or go to jail” are a thing of the past…

    Comment by fmfnavydoc — 12/17/2008 @ 9:44 pm

  22. 1. Mandatory treatment/testing and three years suspended. Any probation failure/violation and the three years kicks in.

    2. 5 years w/4 suspended based upon satisfactory probation. 1 year in county should/could possibly straighten the kid out. Prison tends to educate rather than rehabilitate criminals. Any recidivism and throw the book at him. I’m assuming he has no violent priors.

    Comment by Chris — 12/17/2008 @ 10:03 pm

  23. I really hafta do this w/o checking others’ comments first?

    *sigh* I’m gonna suck at this. NOT A LAWYER!

    OK, after more than 30 years (THIRTY YEARS??) Stephen’s going to learn to like work. In jail. Or die trying. Bye.

    I work w/ inner city teens and really, really have a soft spot for good ones who have grown up disadvantaged. But Marcus is 19 and especially since he was on the right track otherwise, knew full well when the gun showed up that lives were in danger. And that is serious business. No record? He gets 9 months for helping the people w/ the guns (couldn’t decide btw 6 months and a year. And get him in a good program while he’s there so he doesn’t ruin his whole life.

    OK *off to check other comments*

    Comment by no one you know — 12/17/2008 @ 10:18 pm

  24. The first dude – He needs to be removed from polite society.

    The punk kid is now trying to cover his ass, and the idea that he could know there was a gun and still participate outweighs any leniency I would give him. However, I would be more inclined to pray that there would be some way to get him back into productive society sooner, rather than later.

    Comment by JD — 12/17/2008 @ 10:28 pm

  25. So, in short.

    Dirty slimeball #1 – Natural life.

    Dirty slimeball #2 – 80% of statutory max.

    Comment by JD — 12/17/2008 @ 10:33 pm

  26. case 1

    5 yrs suspended with
    1 yr enforced drug rehab, if not completed satisfactorily according to court monitor then sentence takes hold. Er, if that’s possible? not sure if 3 strikes would kick in.

    case 2
    once he saw the gun then continued, it’s armed robbery. at least 5-10 yrs. time off for cooperation down to 3 – 5. maybe less? depends on repentance and maybe even references?

    Comment by Marc — 12/17/2008 @ 10:36 pm

  27. Steven’s a life long asshole… junkies are magicians… they can turn $5000 worth of your stuff into $100.
    As much as I think this case is the tip of the iceberg of what this shithead has stolen, I’d give him a year. Terms would be that after that year he’d have to be drug and crime free for five years or he’d do 10 more in jail.

    Marcus gets 2 years from me. (His lawyers story about how the poor kid was scared his friends would kill him if he didn’t drive them around, is probably bullshit, but peer pressure with a gun *might* happen) Terms upon release are that felony crime (including wheelman for a bunch of pistol waving morons, but excluding violent crime or murder) gets him to state jail for at least 12 more years…. crime with a weapon gets him 30 to life depending on the crime. Don’t f*** with me I gave you a chance.
    He’ll also get a long probation upon release like 5 years…
    Not sure how I’d handle terms for lightweight crimes, but probably would tell the kid if he comes in again for any reason, to expect at least the worlds most tight assed 5 year probation for anything beyond a noise complaint and shit like burglary is going to rate at least 5 years jail

    Comment by SteveG — 12/17/2008 @ 10:38 pm

  28. Disclaimer: I used to be a prosecutor in a neighboring county to that of the author and the host of this site. I have not practiced criminal law in over 5 years, and now currently live abroad. I consider myself way out of the loop when it comes to the daily machinations of the US criminal justice system.

    Scenario 1: This guy may think he is only a user of drugs and ‘non-violent’, but first degree residential burglary is an extremely serious offense with the high likelihood of violence resulting from either his acts once inside the house, or the homeowner’s right to defend it. They call it a ‘hot’ burglary for a reason: the potential for a flare-up of violence, and therefore injury to innocent people, is extremely high. Although his last burglary was 12 years ago, he has exhibited the ability to commit this kind of crime in the past, and his recent theft from the drugstore proves he is not beyond doing nearly anything in order to get his fix, and likewise not caring about the consequences, as evident from his nonchalance regarding the probable use of his loot to eventually make methamphetamines. Furthermore, his recidivist nature is beyond dispute.

    This guy deserves to go away for a very long time. Disregarding any possible 3 Strikes issues, as your instructions just said to state a number of years or LWOP, I’d sentence this guy to 30 years. The main factor for me in handing down this sentence is his criminal history. He is light years removed from being a productive citizen in society. He will most certainly steal, rob, burgle and who knows what else in order to get his fix, and nothing has nor will stop him. It is time he lived out the rest of his days behind bars. When (if) he gets out at the ripe old age of 85, I think it is safe to assume his days of endangering society will be over. One can hope…

    Scenario #2: This one is tougher. On the one hand, I can understand the mentality of the ‘bored’ youngster who does something stupid once and learns right away that it is something he will never ever do again. I, too, once did something at a young age that landed me in bracelets and had me bawling after my folks had to come pick me up ‘downtown’. The embarrassment and disappointment at having let them down was almost too much to bear. I was easily able to commit to never doing it again, and in fact never hit another speed-bump on my way to college, law school, a job as a prosecutor, and on from there. So on the one hand, I think we can all relate to the fact that sometimes, in our youth, we do some stupid stuff. The question is whether those juvenile acts that we did at a young age, with our whole lives ahead of us, without thinking first…should haunt us for the rest of our lives, making it extremely difficult to eventually get on the right track (as leading a ‘normal’ life, by most standards, with a felony in your background is certainly not a walk in the park).

    My slip-up, however, was non-violent….

    Marcus’s attempts at curing his boredom were incredibly dangerous. The risk of someone getting killed (either the victims or one of Marcus’s buddies) was off the charts. His crime cannot be passed over as youthful horsing around, even though ‘all he did’ was drive the getaway car. Because he did not quit the events that evening the minute he knew there was a gun involved, he deserves to spend some time in prison. Since he has no record, I would probably give him 2 years. I think it’s a long enough time considering that no one was actually hurt, and he in fact was not the holder of the gun. It should be enough.

    Comment by EVN — 12/17/2008 @ 11:00 pm

  29. I have no legal knowledge so my answer is just what I think is fair.

    1. Non-violent (convincingly after his career) residential burglary. I would give two years on account of recidivism – less for first time. This is petty crime.

    2. Participant in violent burglary. Use of firearm elevates the seriousness of the crime enormously in my mind. Criminal intent appears much less though, and age mitigates the moral weakness. My guess is that offender would steer clear of bad company next time out. I would give a suspended one year sentence. I’ve never been comfortable with the notion that an accessory assumes responsiblity for the actions of another offender unless it can be established that the accessory would have a reasonable expectation of what would happen.

    Relative to the other commenters I’m looking like a bleeding heart. My friends would never believe it!

    Comment by gavagai — 12/17/2008 @ 11:01 pm

  30. Situation 1: He’s been institutionalized and probably can’t make it on the outside. I don’t see how you can “throw away the key” on this guy unless a 3 strikes is used against him. A bottle of cough medicine can’t be considered a major crime. Obviously, he is a danger to himself at the very least, so he needs to be supervised, but does he need a heavy sentence? I wouldn’t go that direction.

    Situation 2: Throw the book at the 2 active perps and give the driver supervised probation, 5 years.

    Comment by Sara (Pal2Pal) — 12/17/2008 @ 11:09 pm

  31. Case 1: Will never be a functioning member of society and home entry is a very scary scenario so (25) years.

    Case 2: Real lack of judgement but having spent a night in jail many years ago because of a loud party and went to the slammer because of what a friend did, I know how frightening jail can be to a “good” kid who made one bad judgement.

    I would give (3) months jail time, revoke his drivers license for (6) months after release, and then probation for two years to remind him of what he did with record expungement after (10) years if no further incidents.

    Comment by GoDaddy — 12/17/2008 @ 11:30 pm

  32. The way we treat crime, and crime itself, has evolved quite a bit.

    Devolved is more like it. Today, kids are adults at 18, instead of 21, and those few years make a huge difference in maturity. Today, some of the worst violent offenders are law enforcement, especially here in Calif. There is no such thing as the friendly neighborhood policeman anymore. Today, everything is considered a “horrible” crime that deserves maximum punishment. When I was growing up, kids that got in trouble got taken home to parents who took care of the situation. Today, the kids would go to jail and be charged as adults and if the parents tried to discipline them, they would also go to jail charged with child abuse.

    Comment by Sara (Pal2Pal) — 12/17/2008 @ 11:32 pm

  33. Steve, the recidivist junkie.
    Gotta lock him up and throw away the key. Tough on Steve but you have to do it to protect everybody else since he will steal so long as he’s in circulation. 15 years, life with parole. Whatever sentence that will keep him off the street until he’s over 70. By the time he’ll probably be too old to keep stealing.

    Marcus, the stupid-ass kid.
    Since he has no previous record, give him less than a year. I’m not sure what kind of conditions to attach – if it’s possible to demand outstanding grades in school under penalty of going back to jail that could work. If he can keep a clean record for the next 3-5 years or so I’d be amenable to sealing his record to make it easier for him on future job searches and such.

    But he’s dancing on the edge of the precipice. Another criminal act and I’d be very harsh.

    Comment by Arthur — 12/17/2008 @ 11:34 pm

  34. I’ll follow up with both a legal analysis and an equity analysis in the next couple of days. Keep those answers coming!


    Comment by JRM — 12/17/2008 @ 11:52 pm

  35. Adding on to my #33.

    The 2nd case is where great judges are distinguished from the rest. There’s a chance to save Marcus if the judge can figure out the right conditions. That’s something that would be different for each individual in similar circumstances.

    It’s also where bad judges would have full opportunity to really stink it up.

    Comment by Arthur — 12/18/2008 @ 12:02 am

  36. i’d put the junkie in a work camp far from anything resembling civilization, say on the north side of the Irwin/China Lake area, with all the other multi-conviction junkies.

    they get 3 squares a day, basic medical care, and all the medicinal grade heroin they want, with fresh syringes and needles too. society is safer, and the population sorts itself out fairly quickly.

    the poor misunderstood youth gets the book thrown at him. if CA was a permissive CCW state, as it should be, then we likely wouldn’t be having the discussion, as a citizen could have saved the state all sorts of trouble and expense for the trial and incarceration.

    life is tough, and it’s tougher if you’re stupid.

    sympathy is in the dictionary: it’s right between ‘shit’ and ‘syphilis’.

    Comment by redc1c4 — 12/18/2008 @ 12:17 am

  37. Not a lawyer, just a victim of street crime (2 muggings, 1 with an implied knife, the other with a .22 chrome-plated revolver stuck in my belly).

    The first guy is a recidivist, career criminal. He’s 55 years old. Anything that keeps him in prison until at least age 70 would be good, 25-Life even better.

    As for the bored college kid, Marcus, with no record, I’m not sure how ‘youthful offender’ applies as the kid is 19 years old. That’s an adult in today’s society. Anyway, I would have gone leniently on him if, once he knew there was a gun involved, he had bolted, but he went on to drive his friends around so they could commit 3 more armed robberies. That’s leaving youthful indescretion territory and entering into blatant and reckless disregard for other people’s lives and property. Now my understanding is that the three friends are all guilty of the same crimes, that is, they are all guilty of the gun charge because they were acting in concert together to commit armed robbery. No youthful offender status on this one. Each robbery, 1-1/2 years each, for a total of 6 years, plus any applicable mandatory gun charges. The sentence may seem heavy, or even Draconian, to some, but Marcus was involved in an armed robbery spree and that is no laughing matter, even if he was “just” behind the wheel. (If any of the robbery victims had been shot and killed, Marcus would be up on murder charges, even though he didn’t pull the trigger.)

    Comment by RickZ — 12/18/2008 @ 2:07 am

  38. Case 1: 20 Years. No parole.
    Case 2: 2 Years served, 5 Years probation.

    One feels sorry for Case 1 but it’s obvious he
    cannot live free in society.

    Case 2 needs to understand the seriousness of lawlessness whether due to boredom or evil.

    Comment by krusher — 12/18/2008 @ 2:49 am

  39. rickz has a point…

    It’s not fair to judge the driver until you picture yourself or your daughter at the business end of a mugger’s gun.

    Comment by Juan — 12/18/2008 @ 3:09 am

  40. Juan,


    My one thought at the time of the mugging with the gun in my belly was, “Please, Lord, don’t let him sneeze.” In the span of nanoseconds, I thought that if he sneezed, he’d he’d have a muscle spasm, then Blammo!, and I’d be dead, dying, paralyzed, or “just” wounded. The end of the barrel was in contact with my gut, so there was no chance of the guy not hitting me with a round at that range if he did sneeze. When the cops asked me for a description of the mugger, I could only describe the gun as that had my undivided attention.

    Comment by RickZ — 12/18/2008 @ 3:22 am

  41. Steven: life, based on the long history of recidivism involving victimful crimes. Since his crimes are so closely related to his drug problem, maybe some form of probation after 5 years that requires treatment, and immediate re-incarceration if he falls off the wagon.

    Marcus: 5 years. I almost said 10 but then remembered you were asking me to sentence him to the amount of time he’d actually spend there.

    Comment by Xrlq — 12/18/2008 @ 4:05 am

  42. Since Patterico asked for specific sentences in the other thread, I’ll expand on my previous comment. The predominant considerations are the sentencing range and the sentencing factors the judge must consider when imposing sentence, as enacted by the legislature. Going by Illinois law:

    Steven gets three years for theft and seven years for burglary. These are the maximum sentences. Also, under Illinois law, they must be concurrent since they both arise from the same set of facts (maybe the theft should even be vacated). With day to day good time and administrative good time, he will be out in two years and nine months.

    Armed robbery is Class X with a mandatory minimum of six years and a maximum of thirty. The robbers are liable for consecutive sentences because there were four different victims. Illinois favors concurrent sentencing but this situation justifies departure. There were four different victims in four different places. So they are facing up to 120 years, of which they will have to serve half.

    My problem is that I cannot see giving Marcus less than two-thirds of what I give the other two. His lesser participation does not justify a greater disparity in this fact situation. So for Marcu’s sake, the two co-defendants get four concurrent sentences of eleven years each, and Marcus gets four concurrent sentences of eight years each which, with good behavior, means he could be out in three years and nine months with an automatic supervised release (parole) for two years.

    Comment by nk — 12/18/2008 @ 4:26 am

  43. Death by Hanging for both

    Comment by Frank Drackman — 12/18/2008 @ 4:30 am

  44. 1. Lock him up as long as possible. He’s a lost cause.

    2. 1 year, $2000 fine, suspended, with court retaining jurisdiction. Pay restitution to victims within 30 days. Suspended as long as no other crime other than minor traffic violations or suspension will be vacated at discrection of the court.

    Comment by Gerald A — 12/18/2008 @ 4:30 am

  45. Correction: With day to day good time and administrative good time, Steven will be out in three years and three months. (No credit for time served except at the back end should he have to serve the full seven years.)

    Comment by nk — 12/18/2008 @ 4:36 am

  46. For Steven, burglary is a violent crime in my eyes, since it implies that you are willing to deal with anyone you encounter in the residence. He’s had his chance to change, and clearly never will, so assuming prison is the only option, life without parole.

    For Marcus, he’s weak and stupid, and may have learned something. Then again, his willingness to be a part of robbing people shows an ethical flaw that is unlikely to ever change. However, realistically, we can’t forcefully make sure every moron never has a chance to repeat a lone mistake. I’d give him 6 years.

    Comment by Justin — 12/18/2008 @ 5:10 am

  47. In situation number 1, my duty as a prosecutor is the clear and present danger to the public – 20 to life – I would be troubled by it as excessive – but the pattern is clear as is the duty

    In situation number 2, compelling cases are like term papers – all the good ones have been written…

    10 to 15

    There was a gun involved

    Comment by EricPWJohnson — 12/18/2008 @ 5:24 am

  48. First case. He ain’t never hurt anyone is an insult to me. Burglary hurts people. He is a repeat offender. I would give him a sentence that gets his notice – say 10 years. I don’t think his addiction should have anything to do with it at all. Addicts do not have a license to steal.

    Second case. He participated in armed robbery. Only a committed criminal would keep participating as he did. Of course he is distraught, he got caught. First offense – 5 years.

    I lived in the city during the days of the Philadelphia prison cap. I saw what it was like to leave crime unpunished. The citizens are punished. I would err on the side of punishing behavior that is unacceptable. The only excuses I would honor are the ones that lead to the conclusion that he did not really do it. The guilty plea is irrelevant, and probably negotiated.

    When I say prison, I mean prison. Spartan accommodations. Forced labor. But NO sexual abuse.

    I’m pulling those years out of a hat. i have no basis for comparison. I’m tempted to double them both.

    Comment by Amphipolis — 12/18/2008 @ 5:38 am

  49. 9, Juan, my friend, Mal, was Old Corps. We discussed such things. In the Old Corps, things happened to habitual criminals if they continued to be criminals, or the first big timer who did not get the message. Now days, they call them blanket parties, but that is mild as to what would happen. Can you say, “Fatal Mishap”?

    Comment by PCD — 12/18/2008 @ 5:44 am

  50. Case #1, The Recidivist – This guy will not change his behavior, under any circumstances. He does wrong, he knows it’s wrong, and he bloody well doesn’t give a damn. Lock him up and throw away the key.

    Case #2, The Kid – This kid had several chances to recognize his error, but repeatedly failed to correct himself. He can’t claim drunkenness as a defense, as he was able to operate a motor vehicle for an extended period of time. As this is his first strike, he gets a break – a small one. One year confinement, plus five years supervised probation. If he gets as much as a speeding ticket during the five years, he gets confined for the remaining period, in addition to whatever sentence his subsequent trouble nets.

    “Stupidity cannot be cured with money, or through education, or by legislation. Stupidity is not a sin, the victim can’t help being stupid. But stupidity is the only universal capital crime; the sentence is death, there is no appeal, and execution is carried out automatically and without pity.” – Robert Heinlein

    Comment by cvproj — 12/18/2008 @ 5:44 am

  51. I’d like to posit something here for discussion about Marcus. The boy is a tool. If he got into administration, private or government, he’d be the sort who illegally accesses files, pays the wrong people, or the like. He needs a “size dozen” from Paul, Sr. to straighten out his act.

    Comment by PCD — 12/18/2008 @ 5:46 am

  52. 50, Ahh, a person who understands “Balancing”!!!

    Comment by PCD — 12/18/2008 @ 5:47 am

  53. #1 – He wants to be in jail. Jail is the only “home” he has ever known. He must have had a few bucks in his pocket when the prison bus dropped him off. He didn’t need to steal the cough medicine, it was a “cry for help”. Send him back to the only place he’s comfortable. Life.

    #2 – he’s as guilty as the knucklehead waving the gun. If he were smart, or cared, he whould have driven off the moment it appeared. He should be given the exact same time as his “buddies”.

    Comment by Michael Giles — 12/18/2008 @ 6:17 am

  54. 3 years for the heroin addict, and 7 years for the get-away driver.

    Comment by Ropelight — 12/18/2008 @ 6:18 am

  55. I give them both 5 years, assuming there’s no 3 strikes law in place for Steven. That just postpones our next go-round for 5 years. He’s a waste product, but he’s not violent. I can’t do life for shoplifting unless the guy is a serious threat and Steven doesn’t seem to be, other than to himself.

    As for Marcus, a 5 year sentence will leave him plenty of pieces of his life to pick up when he gets out. Up until the point that he knew there was a gun, I’d have gone easy on him. Past that, he’s guilty of multiple counts of armed robbery. Make good use of your time, Marcus.

    Comment by Pablo — 12/18/2008 @ 6:31 am

  56. PCD, I hate to admit it, but I myself was the victim of a blanket party years ago (I just realized how many years and it has ruined the morning). Not soap in a sock level of abuse, but I still learned my lesson.

    The Marine Corps, which isn’t exactly for dainty types, is still an organization with lots of technology and little room for errors in diplomatically sensitive times. We have an amazing quality of troops now, but they don’t have the freedom to fix problem troops they once did.

    It’s not that the old way was wrong or that the crooks who reformed in the military aren’t good people. It’s just a different time now, my friend. I sure wish there was something like that option though.

    Comment by Juan — 12/18/2008 @ 6:43 am

  57. I also wrote my response out before reading others.
    #1 I would offer a choice of either life without possibility of parole or a massive overdose of his drug of choice. I would be secretly pulling for the latter.
    #2 You can’t fix stupid. Minimum 5 years at hard labor. Oh, wait, we don’t make prisoners work anymore. Okay, reinstate the “at hard labor” type of prison sentence then sentence him to it.

    #50 Heinlein quote…
    If this were enforced, we would have no politicians. As implemented in our current society, politician’s stupidity most often adversely affects the general population much more than the politician. i.e. California legislature and the state budget crisis.

    Comment by Jay Curtis — 12/18/2008 @ 6:58 am

  58. Situation # 1 sentence to 10 years with a provisio that he work as an orderly in a prison hospital with the terminally ill; especially those with terminal AIDS from shared needles.

    Situation #2 10 years probation with a provisio that he work in a facility for the mentally retarded, especially those with closed head injuries.

    Comment by GM Roper — 12/18/2008 @ 7:06 am

  59. 1: Life, albeit probably in medium or even low security prison.

    2: 15 years. This is multiple COUNTS of armed robbery, most committed after awareness of the gun. The judge and prosecutor can tell the guy they’ll support parole when/if he truly seems to have reformed, but “youthful” and “no priors” can’t counter “multiple counts of armed robbery.” Sorry, kid: yes, you probably DID throw away your life.

    Comment by Mitch — 12/18/2008 @ 7:10 am

  60. 56, Juan, Look at yourself now. Liberals in their wellmeaning to remove pain and responsibility from life actually increase the pain and misplace the responsibility for the cause.

    I think some of the Old Corps ways should be brought back, especially the options to “fix” problem recruits.

    Also, an agreement ought to be an agreement, whether a Marine Corps enlistment, a plea bargain, or a NFL Contract, they should be honored to completion, not discarded if the person can’t cope or is having a bad day.

    Comment by PCD — 12/18/2008 @ 7:19 am

  61. I think drugs should be legalized. Theft, however, not so much. Steven, the 55 year old, obviously knows better. What I would want to know is, did this guy get heroin while on the inside? Shouldn’t he have gotten over his habit after 12 years? Steven is determined to be a drag on society his entire life, if he’s not going to get a job and is just going to steal to get drugs. I say make him work…in prison. He can make license plates, or clocks, or whatever. Since he didn’t do anything violent, I don’t think he should go away for the rest of his life, but I would make a sentence of something like “5 to life,” where release is contingent upon a board after 5 years.

    Marcus is an idiot and should be sent away for 20 years minimum (20 to life.) I have no sympathy for someone who can so casually *not care* about acquaintances committing violent crimes. He didn’t directly commit the robberies, but he absolutely abetted it, and it’s the same as if he actually did it. People who commit violence against others out of boredom are exhibiting sociopathic/psychopathic tendencies and have to be kept out of society.

    Bottom line, neither of these people cuts much of a sympathetic character for me. And the violent sort much less than the other.

    Comment by Andy — 12/18/2008 @ 7:30 am

  62. After reading through some of the comments, nobody appears to have been as harsh on Marcus as I was. I can see other people’s points on him, and if I took enough time to deliberate I could see going down to a few years (like 5) from 20. But unsolicited violence is evil bad, and he was part of it. 20 years guaranteed is probably too long given the extenuating circumstances upon further reflection.

    I don’t agree with sentiments about making him enlist in the Marines or other armed forces. We shouldn’t just send our problems into the armed forces to make them deal with it.

    Comment by Andy — 12/18/2008 @ 7:42 am

  63. Disclaimer: I am a former Prosecutor.

    Situation 1: Even though the theft was relatively minor, based upon this guy’s record he should get a long prison sentence. Something like at least ten years, maybe even 15.

    Situation 2: The kid was stupid, especially after he knew about the gun, but he is still a kid and there is some hope that he can be turned around. Here in Illinois we have a “Boot Camp” option which I would recommend for this kid. You actually have to be sentenced for more than one year, but with a recommendation for the Boot Camp program. I would give the kid three years, with a recommendation for Boot Camp. Boot Camp takes around six months to complete and then he would be on parole for the balance of the three years. If there were no Boot Camp, I’d give the kid some serious county time, but less than a year, say six or nine months, with four or five years of probation.

    Nice scenarios.

    Comment by J. Raymond Wright — 12/18/2008 @ 7:49 am

  64. 62, Andy, the Armed Forces are a closed environment. Marcus would not have free choice and his options would be limited, but he could improve himself and build character. In prison, all he’ll do is go to “school” an become an even more effective criminal.

    Comment by PCD — 12/18/2008 @ 7:51 am

  65. It depends on how the D.A. files the charges in each case. Let’s take Steven first. Six prior residual burglary convictions. Burglary is defined as a “serious felony” under California law making each of the six a “strike” offense. It only takes two prior strikes coupled with a current conviction for any felony offense to qualify a defendant for the 25 years to life penalty mandated by the 3 strikes law.

    Four drug possession priors plus two possession for sale priors gives him six “non strike” priors all of which could add one consecutive year to his sentence. Why? One must remain continuously free from prison custody for a 5 year period for any of the non strike convictions to “wash out”. Thus Steven, having spent all his life in custody, on probation or on parole some, if not all of the non strike priors may still be viable.

    As if that’s not enough, Steven qualifies as a “habitual offender” under section 667A of the California P.C. and could catch an additional 5 year consecutive term for that.

    Next, he was on parole at the time of his most recent arrest and conviction. And last, even petty theft with a prior theft conviction can be prosecuted as a felony no matter how trivial its actual dollar amount.

    That one’s too easy. Adios Steven.

    The kid’s case is a little more difficult. But once again it depends on how its filed and what the kid was ultimately convicted of.

    Robbery is defined as a “serious and violent” felony in California. If the gun use was alleged (in any of several permutations) and found to be true or admitted, (as previously noted in one or most posts)the kid is absolutely ineligible for probation,

    If the gun use was not charged or was stricken, probation is available only if “unusual circumstances” can be shown warranting, in the mind of the judge a grant of probation. That’s not likely here because the kid’s initial decision to help his homies go robbing was exacerbated by his continued an willing participation in 3 more robberies even after he became aware of the gun.

    Since each crime was an independent, stand alone event, consecutive sentencing is available if not mandated.

    Conclusion, sorry kid. 12 to 15 years minimum.

    Comment by Ms. Judged — 12/18/2008 @ 7:53 am

  66. Case #1 This guy is a lost cause. Never going to conform his conduct to the law. On the other hand, he hasn’t hurt anyone. Eventually he will kill himself with an overdose, die on the street from exposure, or die from some chronic decease caused by his lifestyle. Life sentence (and it is a blessing for him).

    Case #2 This guy is possibly redeemable, but he committed multiple serious offenses. Violent offenses, involving sticking a gun in some honest citizens faces (I know, I know–“he only drove the get away car”–so what?.) Even though he didn’t actually brandish the weapon, he was part of the joint venture that resulted in the armed robberies. Society has a duty to send a strong message to all those other “bored young men” that that kind of conduct will not be tolerated. 15-20 years–with a consideration of parole after 8, if he makes public service announcements and presentations to “at risk” bored young men who might be considering similar behaviour.

    Comment by Calfed — 12/18/2008 @ 7:55 am

  67. Actually, scenario #1 reminded me of the “Pizza Thief” in California that the anti-3 strikes bozos tried to use to kill the law. The tried to limit the discussion to giving a jerk life for stealing a piece of pizza from some kids. All discussion of his past violent felonies were dismissed as not germaine to the current offense. Also, the true facts that the criminal did not like pepperoni pizza, which is what he stole, and that he terrorized the kids before the theft were inconvenient things for the anti crowd. This criminal is precisely what 3 strikes was all about.

    Comment by PCD — 12/18/2008 @ 7:56 am

  68. Situation # 1
    I would have to say either life in prison or 20 years minimum, I cant picture him robbing people at 75 years but you never know. Now I don’t care for life without parol, I think it encourages more crime inside of prison and I admit I am willing to expand the death penalty to other crimes.

    Situation # 2
    All three should receive the same sentence based upon the most serious charges, in other words whatever the gunman gets the others should get the same.
    Here in California if someone is shot and killed during a robbery all the perpetrators get charged with murder, even if the one that died was one of the perpetrators and he was shot by the police, so I would expand upon that premise.

    Comment by ML — 12/18/2008 @ 8:17 am

  69. I was enlisted Air Force (so not Army/Marines) for 4 years, and I can tell you we didn’t want “somebody else’s problem” either in our squadron/unit or in the Air Force. We still had problems, and it’s frustrating because you basically have to babysit them AND pick up their slack.

    I didn’t think of the Air Force as a “closed environment,” as there is plenty of opportunity to make/get into trouble during time off. Certainly time spent in Basic Training/boot camp is rigidly prescribed, but once you’re out in your real job it’s really not overly different from having a job on the outside. Granted, you can have conditions imposed upon you like restriction to base, but that’s rare and hard to enforce anyway.

    Comment by Andy — 12/18/2008 @ 8:21 am

  70.      Hi PCD. Regarding your comment # 67, in Scenario #1, Recidivist Steve, is NOT like the PIzza Thief case. Steve was driven by a desire for heroin. The Pizza Thief was driven by a desire to cause fear or harm to others. Pizza Thief was previously convicted of robbery and attempted robbery, among other things. That is, the Pizza Thief had been convicted of what the Youthful Offenders had done in Scenario #2 (except I do not know if he ever used a weapon). So, unlike Recidivist Steve, Pizza Thief actually used violence or the threat of violence. So, while Recidivist Steve indirectly created a risk of violence (see my comment # 13, Pizza Thief directly caused violence or the threat of violence.
         By the way, Pizza Thief’s sentence was reduced to 6 years, and he served only 3.
         So, if Pizza Thief’s sentencing is the guideline, much, much softer sentencing is appropriate in our two scenarios. (Yes, I am giving the young adults the benefit of the doubt in assuming that they would not actually have hurt anyone.)

    Comment by Ira — 12/18/2008 @ 8:27 am

  71. Scenario #1, throw away the key. Whatever the maximum allowed sentence is, he should get it.

    Scenario #2 is more tricky, but not by much. I’d say 3 counts of armed robbery, and one count of whatever the crime is for unarmed. I’d say 3-5 years would be about appropriate. He screwed up badly, and he should learn why to not do that, and be an example to others. Remorse will help him in life, but not in his sentence as far as I’m concerned.

    I’m not so much concerned about keeping him out of the prison system to keep him from being a career criminal because, as a college student he should be smart enough to not have to turn to a life of crime when he gets out at 22, so if he does so anyways, he was just a bad apple.

    Comment by Skip — 12/18/2008 @ 8:29 am

  72. Further to comments ##s 67 and 70, does anyone know what has become of Pizza Thief Jerry Dewayne Williams? As I mentioned, he actually served only 3 years. He was released in 1998. Has he been an honest citizen since then? If so, that would be terrific evidence of the 3 Strikes Law’s hoped for deterrent effect’s actually working because Williams should expect that his next crime would land him in jail forever.

    Comment by Ira — 12/18/2008 @ 8:50 am

  73. Steven: Maximum sentence. I’d like to say he could go to drug treatment and avoid it, but he’s had over 40 years to try to kick the addiction.

    Marcus: 15 years, but I still think he’s salvageable. He does 18 months (12 months plus another 6 months for stupidity) of time somewhere he’s not going to pick up tricks of the trade. The rest of it is suspended and he gets a good long time on probation. Anything more than a minor speeding ticket and he gets to serve the remaining time.

    I know someone who spent time in a prison that was a converted college campus. He got some non-criminal education while he was there and became a productive member of society. Six months in the county jail (so he can get a taste of jail life without getting an education) and a year somewhere like that (so he can realize he doesn’t want to experience any more jail life) would be good for Marcus since his college career is over for now.

    “Your stupid alarm went off pretty hard on this one, but I think you can straighten up and live a good life, kid. Don’t prove me wrong.”

    Comment by Steve — 12/18/2008 @ 9:00 am

  74. @#66: I like the public service/presentation requirement. It gives him something to keep his free time occupied during his long parole. Tack that on.

    Comment by Steve — 12/18/2008 @ 9:02 am

  75. Case #1: Shoplifting? 5 years probation. Mandatory treatment. He will probably end up doing life on the installment plan anyway, but that’s an appropriate punishment for that particular crime.

    Case #2: 15 years with a real possibility of parole.

    Comment by Fritz — 12/18/2008 @ 9:19 am

  76. 1. Look, I’ll buy the notion that the guy is nonviolent; why not? But he’s clearly broken, and there’s no reason to think he’ll do well on the outside. What I’d rather do is make a deal with him, “Hey, keep a job and/or be in school; don’t steal, rob, or drive high/drunk, and your smack is on the government. It’s a lot cheaper than locking you up.” But I don’t get that choice, alas.

    But I can set conditions, if the sentence is less than one year, so I’m going to do just that: 364 days, entire sentence waived, with the conditions is that he get into a methadone program and not commit any more crimes. Maybe he can manage to flip burgers at McD’s and stay high. If he likes his heroin enough to screw up his methadone fix, well, let the next pseudo-judge handle it.

    2. I think that the kid’s probably lost, and incredibly stupid. Robbing people isn’t okay, even if you don’t have a gun with you; look it up.

    And it’d be a bad idea, I think, if in our societal eagerness to lock up girlfriends of drug dealers for ten-plus-year sentences for their failure to have anybody useful to flip on, we let robbers skate.

    Three years. And while I can’t, by the conditions of contest, add any conditions, I’ll make a strong recommendation that he get up and thank the Flying Spaghetti Monster that his idiot friends didn’t kill anybody.

    Comment by Joel Rosenberg — 12/18/2008 @ 9:30 am

  77. case 1… probation, mandatory drug addiction treatment at AA, the only treatment center that works. case 2 one week jail time two yrs probation.Drug laws that make heroin unlawful also drive up the price so that people like steve end up stealing.get him on some substitute or give him the heroin each week at a treatment center so he ll have no incentive to steal.Help him get a job.
    He and we are better off with hime out of prison. .

    Comment by john morrissey — 12/18/2008 @ 9:43 am

  78. Steven,

    Life without parole as a carrer criminal.


    2 years plus 10 years probation.

    Comment by Bill M — 12/18/2008 @ 9:54 am

  79. Case #1: Life without. This individual is utterly incapable of participating in a civil society, therefore he should be removed from it.

    Case #2: The first thing that young Marcus should have done was to say “no.” The second thing should have been to call the cops after his miscreant friends left to commit their crime spree. I make it out as three counts of aggravated armed robbery, also a conspiracy charge thrown in – he actively and knowingly participated in a felony. Were I the judge, Marcus would also be going away for a life sentence, but with a parole option at 25 years or so.

    Comment by The Other JD — 12/18/2008 @ 10:13 am

  80. 72

    Wiki deleted his page in April of this year. It’s curious why someone would take the time to petition for its removal. You’d think that someone in the media would want to do a followup on this guy since it would be interesting either way.

    Comment by jcurtis — 12/18/2008 @ 10:36 am

  81. For #1, the maximum allowed, hopefully on the order of 12-20 years. He is, and has always been, a social

    For#2 a minimum of 5 years. And for those of you advocating inflicting him on the Marines or some other service, what ever gave you the idea that these are for the purpose of salvaging social atavists? Honorable service members should be required to rub shoulders with criminals? What type of asses do you think were responsible for Abu Graib? Spare the services, not the criminals!

    Comment by Thomas Hazlewood — 12/18/2008 @ 11:06 am

  82. Without having read other peoples’ comments first,

    Situation One: Yeah, sure, he’s not violent, but he keeps stealing things and isn’t getting the message. Yes, he’s an addict, and addicts should get treatment rather than punishment; but he should have gotten treatment by now, this has been going on for 34 years. He doesn’t have the resources to make it on his own once he gets out, if he serves any time at all. Life without parole.

    Situation Two: I read this as “dumb kid didn’t think and was led into bad stuff by his friends.” I’d sentence him to five years probation.

    Comment by aphrael — 12/18/2008 @ 11:22 am

  83. Andy…read my earlier post. I just retired from the Navy and I concur with your statement..I spent 4+ years at one of the Navy’s “A” schools a few years ago as the Director for Administration. the number of young people that came through with criminal issues was amazing – had one guy that joined the Navy to “disappear” after he and his fellow gang-bangers were involved in a drive by shooting in SOCAL (actually not far from where I grew up). Feds came into the schoolhouse and cuffed him on the spot, had another that was wanted for felony robbery in IN, he committed the crime on weekend liberty. Had one kid that was into credit card fraud (after the fool came within a minute of death in a motorcycle accident), like to visit pron sites and spend other people’s money on stuff for his car. He got caught after leaving a fraudulent cc application in a government copier…

    Most of the men and women that join today are good, honest people. But God knows how many join because Mom and Dad can’t control their kids, and expect the military to pick up the pieces. Some actually “grow up” and become successful, but those few that don’t get the message spend time in confinement or out on their butts with an OTH or dishonorable discharge.

    Comment by fmfnavydoc — 12/18/2008 @ 11:28 am

  84. #63 > Here in Illinois we have a “Boot Camp” option which I would recommend for this kid.

    There’s no evidence that “Boot Camps” work. None.

    Comment by Arthur — 12/18/2008 @ 1:15 pm

  85. Greetings, all. First time posting here at Aphrael’s request. *waves*

    In general: It’s hard for me to come up with answers without knowing exactly what these people are pleading guilty to. For example, in case #1, it looks like the person in question is pleading guilty to shoplifting some cold medicine. Yes, he’s planning on trading it for drugs, but is that part of what he’s being convicted of? It doesn’t seem like it, so I don’t feel it’s appropriate to consider it in terms of sentencing.

    Case #1: My reading of this description is that the only thing the individual is being sentenced for is shoplifting cold medicine. The quantity is unspecified, so I’m going to assume that we’re not talking cases of the stuff, probably just what someone can stuff in his/her jacket, pants, etc. I would sentence this person to a fine of $200 or so (not sure of the exact amount) and either 20 days in lockup, 500 hours of community service, or something along those lines.

    Case #2: My reading of this description is that the person would be pleading guilty to both armed robbery and conspiracy to commit armed robbery (possibly conspiracy for not-necessarily-armed robbery?). Yes, he’s a good kid who did something stupid, but stupidity isn’t an excuse. Even though he didn’t know the gun was there he was still agreeing to rob people in the first place, and robbery with or without a gun is highly non-trivial in my book. I would sentence him to 5-10 years with the possibility of parole.

    Comment by J.B. — 12/18/2008 @ 1:32 pm

  86. I’m an attorney, but don’t do criminal cases. I’d put the first guy back for another 3-5 years. He doesn’t learn, and it’s pure luck he hasn’t physically harmed someone else. Plus, robbery isn’t the kind of “non-violent” crime that the typical “drugs should be legal” crusader would use to make his point.

    The second kid is a tougher case. He’s also damn lucky nobody got killed, but I have family members in prison for non-violent crimes, and who knows what significant time in prison will do to a kid like this who has poor impulse control and an inability to stand up to peer pressure. I’d probably give him 5 years, but retain jurisdiction (which I believe you can do in my state). I’d then reassess after 6 months and see if prison had gotten him the message.

    Comment by Linus — 12/18/2008 @ 1:46 pm

  87. Steven, the 55-year-old heroin addict. Slow-motion suicide. Why can’t we provide him free heroin to help him on his way? It would be cheaper for us than sending him to prison, and he might appreciate it. Does he have any useful skills, other than being a prisoner? I suppose that lack is as much his fault as anyone else’s. :( Ten years, and he’ll be back. :((

    Marcus, the 19-year-old wannabe something other than what he is, in with a really stupid crew. Ten years, suspended, on the conditions that (1) he must pass drug and alcohol testing at random intervals (at least twice a month) for seven years, and (2) finish his degree (he’s allowed to change majors) within that seven years, and (3) no convictions for other crimes (other than minor traffic offenses with no injuries to anyone else) in that seven years. He might be able to do that, if this was really an exceptional screwup on his part, and thus put this all behind him; I might even allow for the guilty plea to be set aside if he succeeds.

    I don’t want to be a judge. It’s hard work, with little thanks.

    Comment by htom — 12/18/2008 @ 2:23 pm

  88. Ok, here goes.

    Twenty years for Steven, and Five for Marcus – with a reduction to one year each on one condition.

    (I know it’s cheating, but since you only can get creative for one year, I’ll assume that the reduction qualifies)

    Marcus and Steven will be placed together in a drug treatment center away from other addicts or criminals for one year. Marcus must, as a condition of the shortened sentence, oversee Steven through his withdrawals, and also ensure that Steven stays drug-free for the year. (Random drug testing will confirm)

    Marcus will also be responsible for ascertaining an interest or skill that Steven has and assist him in developing it to the point of basic employability.

    Steven will be required to comply with Marcus’ efforts (even after the year) or risk larger and larger portions of his sentence restricted from the general population – no more obtaining smack from the other prisoners. (Which seems to be the reason Steven began stealing to support a habit immediately after leaving incarceration the last time) At that point the only way for Steven to obtain time off for good behavior would be for him to work it off – clean and working, prison or not. If Steven makes it but ends back in trouble, the separation and work will be mandatory in his final sentence.

    Failure of either party sends both back to their original sentences.

    Ludicrous? Probably. Bleeding heart? Maybe. But then don’t ask hypotheticals.

    The common element I see between the two cases is the attitude of a complete lack of responsibility for anyone other than themselves. Both now have an interest in complying – Marcus because of the disruption to his future, and Steven, because this is it for him – compliance or life in the can clean and working a job he doesn’t choose. Their actions will not just affect themselves anymore, but will directly affect someone they know. Whether each cares about the others’ fate is their problem.

    Also, both were involved peripherally in crimes that could have become violent, but did not. Had either Marcus or Steven’s crimes ended in the harm of another party, this experiment would not occur.

    As was asked, I haven’t read the comments yet, but it should be interesting.

    Comment by Apogee — 12/18/2008 @ 3:20 pm

  89. My gut without reading the comments.

    Recidivist: 5 years, to keep him off the street so he doesn’t rob more houses. Not longer because I’m not sure the law/morality of punishing him for this (somewhat insignificant) crime when my real motivation is keeping him off the streets.

    Youth: 7-8 years. He willfully assisted in robbing people at gunpoint. Not longer since it’s a first offense.

    Comment by Josh — 12/18/2008 @ 4:08 pm

  90. Life without parole for Steven.

    At some point society has the right to say “Enough.” You’re not entitled to repeatedly break the law simply because that is the way you chose to live, and you don’t hurt anyone. Society at large has the right to not be preyed upon, even in a non-violent way. Steven knows and understands the nature of his offenses, yet refuses to conform his conduct to abide by the laws that he knows apply. Society doesn’t have to simply allow him to “do his time” and turn him lose again. Warehousing repeat offenders who have shown a long term pattern of not being able to not reoffend, makes for a better and safer public as a whole.

    Marcus — I sure seem to recognize this case.

    Even youngsters have to be held responsible for their own actions when they have the time and opporunity to reflect before they make that bad choice.
    If Marcus had quit after one, and his story about not knowing about the gun in advance is plausible, they you could cut him some slack. But by hanging in for the remainder of the evening until they get caught, any expectation of leniency he had is lost.
    The volitional nature of his continuing conduct buys him 8 years — assuming no prior criminal history.

    Comment by WLS Shipwrecked — 12/18/2008 @ 6:08 pm

  91. Ok, I’m a bit anal….

    The repeat offender gets life. There are only so many chances a person should get. After that, the specific crime should be, IMHO, irrelevant. If he hasn’t learned that “crime does not pay” by now, he’s simply not gonna. How much longer until it looks tasty to steal something in a house? What if he had been caught in the act by an armed citizen or the police? What if, what if… The only way to remove the extremely possible “what if” scenarios is to curtail these habitual crimes. And that puts ole boy into the system for life. I know that sentencing based on “what if” scenarios is dubious, at best… To hell with him. I err on the side of caution, and precedent shows this guy is simply going to continue.

    The kid. 1 year for robbery IF the gun hadn’t come out and they then continued. But, since the gun DID come out, and was used in further robberies… 2- 3 years MINIMUM because he was the driver. 5 – 10 years for the others.

    Because… I’ve got to believe… we’d likely be sentencing for an entirely different crime if one of those victims had fought back, or if some person had walked upon the scene.

    Comment by Scott B — 12/18/2008 @ 6:17 pm

  92. Disclaimer to above post…

    1) I have no clue what the sentencing guidelines are in this area.

    2) After reading the comments, I withdraw my “Ok, I’m a bit anal” line. Kind of depressed to find myself somewhat conservative with my sentencing of the young buck.

    Comment by Scott B — 12/18/2008 @ 6:20 pm

  93. Both get life sentences under 3 strikes. As the judge in Marcus’ case, I strike two strikes and sentence him to the max on the 211 w/the armed in commision allegation. After he knew the other person in the car had the firearm, he was WAY more than just a driver.

    Disclaimer. That’s one cop’s point of view.

    Comment by Patrick — 12/18/2008 @ 6:42 pm

  94. “What is this case worth?” is a question that focuses on punishment for punishment’s sake. That’s typical of our justice system, and the results are, well… does anyone here think that our justice system actually prevents more crime than it promotes? Or that it does so at the least possible cost to the taxpayers?

    A better justice system would keep focused on the end goal: a civil society. To that end, I propose the following tests, one for initial sentencing and the other for release from confinement.

    For initial sentencing:

    1. What risk does this person currently pose to society? Is that risk immediate enough and significant enough to warrant confinement?

    2. What will it take to fix the damage caused by this person’s crime(s)? Is that damage most efficiently repaired with this person inside or outside of confinement?

    3. What will it take to rehabilitate and reintegrate this person into civil society?

    Before release from confinement:

    1. Is society, particularly the victim(s), ready for this person to be released?

    2. Has the damage caused by this person’s crime been repaired? If not, is the damage most efficiently repaired with this person inside or outside of confinement?

    3. Is this person rehabilitated and ready to reintegrate into society? This question is the kicker. The moment a person is ready to be reintegrated into society, they should be released from confinement. That being said, if no judge, parole board, Governor, or President of the United States is willing to say that a person is ready to be released back into society, that person should stay behind bars. I have no problem with a truly incorrigible person staying in prison forever.

    So how would Steve and Marcus fair under such a system? I have no idea, and that is a good thing. No human being, not even a wise and well-educated judge, has a crystal ball that works. Lacking such a crystal ball, our current justice system asks the question “What is this case worth?” and picks one sentence for Steve and another for Marcus. Both sentences are certainly punishment, but is society better off? Maybe, maybe not. A better system would process both of them in the exact same way, but the ultimate result, the time of their release (if ever) would be dependent on them. That, in my opinion, is a true justice system.

    Comment by Soothsayer — 12/18/2008 @ 8:01 pm

  95. Case one: this guy is the one the three strikes law was designed for.
    25 to life
    Case two: I’d be tempted to be lenient if Marcus had done anything to prevent any crimes after the first. He did not. And he assisted the rest of the spree. Ten years.

    I realize then second case was a more serious crime. The first case would be no real problem for a 19 year old fool but Steve will never reform and has proven it. Marcus is a sad case. No matter what you do he’s ruined his life. Maybe he’d never commit another crime, but he seems to be lousy at picking friends and weak in every way. It might not be too late to save another weak individual who hears the result.

    Comment by Ken Hahn — 12/18/2008 @ 9:57 pm

  96. I’m going to violate the determinate sentencing rule. My answer is; when the prisoner can show that he can function in normal society.

    That means Steven would spend the rest of his life in prison. Or, more likely, in an institution on an inpatient basis.

    Marcus, on the other hand, may be out in a couple of months. May not even do time. He is, after all, only 19, and 19 year olds are not yet mature adults. He’s young, he’s foolish, he needs more a whack upside the head.

    A set number of years can backfire on you. It tells the prisoner that no matter how he does on the inside, after so much time, he’s free. Set a condition upon release and the subject has motivation to engage in fecal consolidation. Better that than lazing about wasting time.

    And for all of you I tender this wish: Happy Monkey!

    Comment by Alan Kellogg — 12/18/2008 @ 10:48 pm

  97. The addict gets life. To me, he has made his decision and it is irrevocable – he does not want to live. So, he can rot.

    Marcus would get the strictest ankle bracelet/reporting terms available, including routine (every night) remote breathalyzers and random drug tests for three years. No outside trips allowed – no school, no work, nothing. He would receive lifetime probation. He would reimburse each victim costs, plus $25,000. If he should fail probation/not live up to the terms, he would serve ten years.

    Comment by Ed — 12/18/2008 @ 11:32 pm

  98. 1. The Recidivist: isn’t residential burglary an extra no-no? Since he has such a long track record that shows no hope of going straight, I’d go for life without parole.
    2. The Youth: Serious business, remaining involved after learning that a deadly weapon is being used. But apparently no prior record. Maybe 2 or 3 years, with the hope that he’ll learn a lesson and go straight?

    Comment by Ken in Camarillo — 12/18/2008 @ 11:35 pm

  99. This could be the first thread on The Jury Talks Back to reach 100 comments.

    All it takes is for someone to say: hey, Patterico! You’re right!

    Comment by Patterico — 12/19/2008 @ 6:42 pm

  100. I’m not going to say that.

    Comment by Apogee — 12/19/2008 @ 7:13 pm

  101. Not going there either!

    Comment by htom — 12/19/2008 @ 7:36 pm

  102. Will the moderator post a summary of where the jury sits on these two (X 2) scenarios?

    Comment by Another Drew — 12/19/2008 @ 8:34 pm

  103. Situation 1: 15 years to life.

    Situation 2: 2 years in prison and 5 years close supervision/parole following.

    Comment by Jason McClain — 12/21/2008 @ 9:08 pm

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