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Yet Another Patently Bogus Discrimination Claim

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A crime involves four people: the mastermind, an "insider" who exploits his position of trust with the target, and two accomplices. The first two have prior convictions; the latter two have little or no records and cooperate with the police. So, knowing nothing more than this, who would you expect to get the more severe sentences, and who would you expect to receive the lesser sentences?

Quite obviously, to anyone who has been around the criminal justice system, the two accomplices are going to get the lighter sentences. And that is exactly what happened. Yet according to this story by Tom Opdyke in the Atlanta Journal-Constitution, the NAACP is screaming discrimination and calling for an investigation.

The case involved what appeared to be a bank robbery. Except it wasn't really robbery, because the "robbers" didn't really use force. The teller was in on the scheme. So it is theft.

The mastermind of the scheme, already in prison for drug trafficking, got 10 years. The insider teller got five. The accomplice with a minor prior got two, plus eight on probation. The accomplice who apparently has no record just got probation for 10 years. One might argue with the sentences, but nothing appears out of line with what normally happens in criminal cases.

However, the mastermind and the insider are black men, while the two accomplices are white women. So even though legitimate reasons for different sentences are apparent on the face of the case,

"When four people are involved in the same crime and those who happen to be Caucasian receive much less time than those who are African American, this reflects a problem in the justice system that must be addressed," [Edward] DuBose said at a news conference at the Cobb NAACP headquarters in Marietta.

Over at SL&P, Doug Berman says, "this case seems to me to be more about gender than about race...."

Um, how about being more about legitimate differences in role in the crime, prior record, and cooperation with authorities after the fact. For those who oppose rigidity in sentencing, aren't those the factors that should be considered? That is not to say that discrimination doesn't exist, but none appears in this case.

Meanwhile, one state to the south, the NAACP is livid that the law does not take into account accomplice status when it comes to the felony-murder rule. They pick up some partial support on this point from an unexpected source.

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"I would suggest that if a defendant can prove he didn't commit the murder and had no intention of anyone being killed, that the charge be reduced to a lesser offense such as manslaughter," Kent Scheidegger, legal director of the Criminal Justice Legal Foundation in California, said in an interview. "A full murder conviction is unreasonably harsh."

Was that what you were referring to? Wow. Do you think that the burden flip would fly from a Constitutional standpoint? Plus, I think you could get bogged down in the details here. What if the guy knew that one of the accomplices had a gun? What if the guy knew that one of the accomplices would be dangerous to possible victims? I think that while the felony-murder rule can produce some harshness, I am willing to live with it because I would not want to impose a burden on prosecutors to separate out gradations of culpability. If you know you're helping out with a burglary and someone dies as a result, I think murder is, at the end of the day, an appropriate charge.

It is generally considered constitutional to place the burden of proof of an affirmative defense on the defendant. However, the area is gray enough that I would support the existence of a partial affirmative defense only if it were expressly not severable from the burden of proof. That is, if the burden of proof is struck down by an activist court, we are back to the traditional felony murder rule.

I agree that a person who willingly participates in a robbery is culpable in the resulting death, but IMHO the degree of culpability is more like manslaughter than murder.

On the other hand, for rape and kidnapping, I would maintain the felony murder rule in its full rigor.

The burden flip seems a little different, qualitatively, from traditional areas where it is done (e.g., sudden heat).

I really do like the felony-murder rule when it comes to accomplices. I think it recognizes that there is increased culpability when criminals act in concert. I think that it also prevents criminals from being able to point to each other (i know that the affirmative defense idea would obviate that risk) as being the triggerman, thereby, in some cases, allowing someone to get off more lightly than he should. I guess where I come down is that people ought to know that when they do things like robbery, burglary etc., deaths can and do result. And I am willing to live with some harshness in outlying cases.

Just out of curiosity, what's your view of the traditional felony murder rule as applied to unintended deaths, e.g., victim has a heart attack.

While this post and the facts make a case for disparity in sentencing, the outrage comes from the fact that sentences as mild as those received by the bit player women are very rare for anyone involved in grand larcency or bank robbery of this magnitude.

Most opponents of felony-murder statutes, for example, aren't arguing that accomplices of people who kill in the course of a felony should escape criminal liability for the killing. They are arguing that these individuals should be convicted of committing underlying serious felonies and in many cases also of conspiracy to commit murder, and that the fact that a murder resulted from the criminal enterprise is legitimate in sentencing someone based upon the lesser charges of which they are found guilty.

Boil that down to real life nuts and bolts, and felony-murder opponents are really arguing that two or three decades in prison is more just than the death penalty or life in prison without parole for a bit player who didn't kill and in most cases, didn't even set out to kill.

Pure probation, even for ten years, seems very lenient for someone who knowingly partipated in such a serious and pre-meditated property crime, which had a serious risk of becoming dangerous, even with an insider accomplice.

The criminal justice system still hasn't found good middle ground between the very expensive and wasteful sanction of prison terms, and probation/small fines, for people who aren't a great threat to the public but have done something serious wrong (the same quandry comes up in white collar crime cases).

Note that the Supreme Court precluded the death penalty for the minor accomplice swept up in the felony murder rule a quarter century ago. See Enmund v. Florida, 458 U.S. 782 (1982).

I agree that pure probation is too light for an $11K larceny (not robbery, as noted in the main post), but I don't think it's that unusual. I've heard of people getting probation for much worse.

Andrew, I think the "outrage" is simply manufactured. The NAACP doesn't like the optics--it's that simple, and is trying to leverage that into lenience for the other criminals.

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