Let’s do another exercise:

Here are the rules: You don’t have to worry about the actual law. You get to decide.

You do get to worry about how this ruling affects all other rulings.

Scenario One: Redline.

Joco likes marijuana, and watches TV. TV is funny. Joco is 22 and does not work. Joco’s stupid mom stopped giving him money, but his friend Larry has a plan: Joco will drive Larry over to Collector Dave’s house. Larry will bag up all the stuff while Joco is lookout, then Larry will call Joco so they can carry the large amount of antique guns, baseball cards, stamps, and gold coins believed to be in Collector Dave’s house. They’ll run into the car, drive away, and Joco will get 30% of the proceeds, which should be several thousand dollars.

So, Joco drives over Larry. It’s very stressful to be lookout, so Joco smokes a few relaxing joints and dreams of wealth. Sadly, this dream is shattered by many large, angry, yelling officers telling him to get out of the car. Joco does.

It turns out that Joco hasn’t done well as lookout. Collector Dave got home walked through his garage into his house, walked through the hallway and saw Larry bagging his stuff. Larry told him to “stay the fuck there or get hurt, old man.” Dave, a friendly ad salesman and former front-line Vietnam veteran grabbed a gun from the closet and shot Larry four times. Larry is dead.

1. Assume Joco is guilty of residential burglary, and will be punished for that.

2. Should Joco be punished for Larry’s death? To what extent?

Scenario Two: Self-defense?

Fat Tony, 32, likes attractive athletic women like Marie, 36, who runs by his apartment every day. She wears her Ipod and literally won’t give him the time of day. She also has a cell phone holster and some other pieces of electronic equipment, but no time for him. Once, she brushed by him when he tried to talk to her.

Fat Tony couldn’t keep up with her for fifty yards to maintain a conversation anyway.

So, Fat Tony figures out a different romantic move: Knifepoint rape.

Tony knows her route and figures to drag her into an alley. He waits near the alley, steps in front of her, waves his knife, and says, “You’re coming with me, bitch.”

This is not a well-thought out plan; Marie could easily run either down the alley or the other way. Two hundred yards down is a restaurant. Fat Tony might be able to chuck the knife at her, but his chance of really hurting her in a retreat is negligible, and his chance of catching her is nil.

However, Marie’s holster actually contains a two-shot Derringer. She takes one step back and shoots him. As she explains to the cops, she wanted to stop him from advancing, and his girth vs. the relatively underpowered Derringer might mean an ineffective shot.

Her shot was effective. It takes off Tony’s left testicle. Marie said she was afraid of being raped or knifed if she didn’t retreat, that she knew she had a safe route of escape, but that she wasn’t taking anything off anyone and she was perfectly pleased with the result. And now was time to complete her run.

Question: Should Marie be punished for shooting Tony? Why or why not?

What say you?

Yesterday morning I wrote a post asking what should happen to two criminals; one who never gave up on doping and stealing but wasn’t violent, and one who was a 19-year-old driver on a series of street robberies.

The conditions were that you could sentence each to anything you want. I got a lot of great answers; the response was beyond my hope. The explanations below are kind of long, but worthy. There’s a synopsis at the end.

First, the legal analysis of the first case..

Steven the recidivist, who stole some cold medicine probably for some other criminal’s meth-making purposes (called smurfing, in the parlance) had six strike priors, the residential burglaries. This makes any new felony a 25-life sentence, plus his prison priors for 30-life or so. Such a person gets two days for every four served in local custody as good and work time, but no good and work time once sent to prison.

However, a judge or the prosecutor can strike strikes to get to lower sentences. The early plea and the acceptance of responsibility are a factor, but the bigger factors are the nature of this crime (minor) the nature of the defendant’s priors (for strikes, non-violent) the length of time free of crime (none) and the overall view of the defendant’s prior record (a non-stop one-man crime spree.)

Jurisdictions in California range on what they do with new non-violent felonies. I think there’s a lot of reason for different counties to behave differently, but I view an automatic rejection of Three Strikes for new non-violent felonies as an abdication of duties. My jurisdiction tends to grant relief for non-violent new crimes unless the old crimes are really terrible or numerous. I sent a guy away for life for his fourth DUI in seven years because he had 15 strike priors, including rape and kidnapping.

If all but one strike are stricken, then the defendant would get 20% credits in prison and therefore serve about 83% of his sentence (though he’d get extra credits for his pre-prison time.)

My view: I note here that I do not speak for my office. I haven’t identified myself, and I’m sure there’s no way anyone could figure out who I am, unless they owned a computer, but my views are my own.

We can surmise that this guy will keep committing crimes as long as he can, but he didn’t burglarize a house this time. I’d not give him a life sentence, instead choosing a nine-year sentence, of which he’d serve a little under eight. I think the contrary view of sending him off forever is entirely reasonable. I do not think a program is reasonable, because he’s old enough to assume learning is not an option.

It’s warehousing. I have some hope that at 60, his crime rate will continue to slow. I am not too worried about making corpses.

The legal analysis of the youthful four-time robber Marcus is this:

Robbery carries a 2-3-5 triad (those are the year options.) Successive robberies without a gun would be one year consecutive, maximum. The actual guy armed with the gun gets a 10-year enhancement. Our man gets a one-year enhancement for vicarious arming on the first arming, and four months per robbery on successive robberies.

The actual robberies, then, are three, four, or six years for the first robbery, and either concurrent time or one year, four months for the successive robberies. He would get 15% credits on all time (local and prison) and would therefore serve about 87% of his time, which is referred to as “85%” by everyone in the criminal justice system, because the lawyers who can do sixth-grade math all became patent attorneys.

I could see a court giving anywhere between four years and seven years on these facts, of which the defendant would serve most of it. The court would be hard-pressed to give less under California law.

My view: California’s 10-year enhancement for personally armed robbers has done something which ought to be unsurprising: Robbers often use fake guns. There’s a particular manufacturer whose fake guns get their muzzles painted black (they start orange or green) and those suckers look real. But no one gets killed by pellet guns.

Our hero in this case went along with his armed compatriots. That was not just stupid; he could have been a murder defendant if his friend’s gun was less persuasive than intended.

So there are two issues: What’s the balance in having Marcus having a productive life vs. protecting society from Marcus? The second primary issue is, how do we deter the next idiot from driving around armed robbers?

Marcus has to go to the joint. If he comes to me, willing to flip on his co-D’s (even if I have them cold) and willing to take an early deal, I’d be looking at four or five years, depending on how much credible documentary evidence could be had on his non-felon good activities.

Short version: The first guy could get life in California, and might. It does not offend me that this is so, but I would be comfortable with a reasonably long non-life sentence.

Armed robbery participants go to prison, period. They get a break if they haven’t done it a lot. I probably most agree with commenter Juan , FWIW.

The fact that I’m in the business doesn’t mean I’m right, though. Some other answer might be better for society – but I’m trying to get to the right answers, within the legislative dictates.

Bonus: I’m really, truly gratified by the quality and quantity of the responses. I’ve got at least one more post in this field, and it’s on whether certain actions should be crimes. Might be up soon. Or not.

–JRM

The First Lady of Star Trek, Majel Barrett Roddenberry, has died of leukemia.

She was always one of my favorites, and frankly…

I always though she was kinda hot.

As a result of California’s deteriorating budget situation, the Pooled Money Investment Board has apparently voted to stop funding infrastructure projects; the projects in question are ones which are supposed to be funded by the sale of voter-approved infrastructure bonds.

Apparently, while a naive citizen like myself would assume that the projects are actually paid for from money raised by the bonds, this is not the case. The state’s General Fund loans out money to pay for the projects, and then once the projects are underway and nearing completion, the state sells the bonds, and the bond money is used to repay the General Fund. Since the General Fund is about to run out of money, the PMIB said, it can’t loan money to the projects at this time.

To me, this seems like a bizarre way to do things. But, according to one of the guests on This morning’s Forum, it’s required by federal law.

I’m having a hard time believing this is true. Does anyone know what federal law it is that requires states to only sell bonds after the projects the bonds are paying for are almost complete? And does the policy decision embedded in such a law make sense to anyone? (Because, whether it’s required by federal law or not, the state of California is doing it; and while i hesitate to think that they are doing something with no rationale, it really seems like a boneheaded policy to me.)