The Jury Talks Back


What it’s Worth

Filed under: Uncategorized — JRM @ 8:51 pm

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.



  1. JJRM also writes, “the lawyers who can do sixth-grade math all became patent attorneys.” I are one.

    Comment by Ira — 12/18/2008 @ 9:24 pm

  2. *laugh*

    I was amazed at the difficulty some of the students in my tax law class had with arithmetic.

    Comment by aphrael — 12/19/2008 @ 11:43 am

  3. JRM, i have to say that your “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.” line made me laugh out loud…

    It seems I have competition in the “funny/sarcastic” category… :)

    Comment by Scott Jacobs — 12/19/2008 @ 11:57 am

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