Rant of the Week

Proportion and Justice

 

Leandro Andrade, 37 years old, stole video tapes from K-Mart.  He stole 5 tapes and then he stole 4 tapes.  These were not Leandro Andrade's first criminal offenses.   Leandro Andrade is incorrigible.  He stole and stole again. 

Well, that's not quite true.  He broke into some houses and stole things.  He was caught.  He went to prison.  Ten years went by.  Do you think you can escape your past?  Not in California.  He was caught shoplifting in two different K-Marts, by store employees each time.  The goods were recovered..   He was convicted twice. 

Leandro Andrade has never committed a violent crime.  But he stole 9 tapes worth about $150.00 from K-Mart. 

Now he is going to pay for it.  He is going to rot in jail for 50 years.  There is no possibility of parole.  No time off for good behaviour.   No early release.   He is going to spend the rest of his natural life in prison. 

This is essentially the "second most severe" sentence that can be imposed by a court, after death, of course.  For stealing video tapes.  So, when you think about it, the court, in this case, decided that Andrade was such a threat to society that they should almost execute him.  But that would be unreasonable.   That would be barbaric.  Well, what's the next most severe possible sentence?   Life in prison with no chance of parole.

If Mr. Andrade had been smart, he would have stolen all of those tapes at once.  Then, due to a technicality, he would have had only three, not four, offences, and could have served "only" a maximum of 25 years.  I'm not kidding.

If he had been really smart, he would have committed only one theft, and then murdered somebody in a rage, without premeditation.  Then he could have received a lighter sentence.  I'm not kidding.  He might have been out of prison in 20 years, at 57.

But no-- he had to go and steal some video tapes again.  Fifty years.   In a nation that probably thinks of itself as "civilized".

According to Justices Sandra Day O'Conner, William H. Rehnquist, Antonin Scalia, Anthony Kennedy, and Clarence Thomas, that is not an unreasonable sentence for an incorrigible criminal who stole 4 video tapes from K-Mart. 

The Justices who upheld Andrade's conviction believe that his crime of stealing the video tapes must not be seen in isolation.  He is receiving 50 years for all of his crimes, in a sense.  So 50 years in prison is not an unreasonable sentence for several non-violent thefts, according to O'Conner & company.

Even though...  even though California prosecutors did not have to charge Mr. Andrade with a felony.  His crime could have been classified as a misdemeanor, at the discretion of the state.  The state prosecutors, knowing the consequences, chose to charge him with felonies, even though the crimes were not really very serious.  They also chose to charge him with the two thefts separately, so that he would have four convictions instead of three, which led to the doubling of the 25-year maximum. 

If you think this is a disproportionate sentence-- maybe you don't-- consider the case of Rummel.  In 1964, Mr. Rummel was convicted of using a credit card fraudulently to obtain $80.00 worth of goods.   In 1969, he forged a check for $28.00.   In 1973, he obtained goods worth $120 under false pretenses.  Life sentence.  Yes, life in jail for passing a few bad checks.  Have you ever written a bad check?  A check that bounced?  

I'm not sure if they do things more cheaply in Texas than in New York, but In New York State, it cost about $30,000 a year to keep a man in prison.  So the state considers it worthwhile to spend $1.5 million to prevent losses of  about $20 a year.  It would be $29,980 cheaper a year to give the money to K-Mart and let Mr. Andrade free.  It would save the government $1.5 million to just pay for the tapes and let him go.

In fact, if they had simply fined Mr. Andrade, they would have been ahead on the deal.

One of the arguments offered in defense of this draconian sentence is that the people of California, who voted for the "3 Strikes" law in a referendum and approved it, should have their expressed desires respected.  Aside from the question of whether the citizens believed the three-strikes law could be applied to non-violent offenders (you could make a good case that they didn't),  one wonders how far such respect should go.  Suppose they wished to introduce flogging for littering?   Suppose they wanted to castrate rapists?  Suppose they wanted to cut the hands off of pick-pockets?   Our nobel, enlightened Supreme Court would pronounce, "Yea, for the people hath spoken, let the mutilations begin!"

In fact, if I lived in California, I believe I would start a campaign to introduce a referendum forcing the government to arrest witches.

 

All contents © copyright 2003 Bill Van Dyk