<< SCOTUS Denies Stay to Worthington | Main | About That "Unstoppable Momentum".... >>


The Story of a Minor Crime

| 7 Comments
We often hear that the law overpunishes "non-violent" offenses. This usually means theft of some sort, and the phrase "non-violent" is basically used as a cipher to imply "non-harmful" or "not all that harmful."

So I want to tell you the story of a non-violent crime that recently came to my attention via Facebook and email messages from the parents of the victim.  I have changed the proper names to conceal the identities of the people involved.  The first message is a Facebook entry from the mother.


Johnny worked all summer long to have his own computer where he could do his school work (he is home schooled) and not have to wait for his brother to get done. He saved all his money and was so excited when he brought it home. Since he bought the computer he has used it to excel his studies and is now on a 9th grade level of learning (and he is only 11 years old). With the loss of his computer, it takes longer to get school work done, since he has to take turns, and the enthusiasm kind of dies while waiting. Johnny's computer was not for game playing, or surfing the internet, but to increase his education.

PLEASE, if you have it or know who does... we just need it back. It caught a virus and needs to be fixed so he can continue to learn. It means nothing to the person who took it because you took it before it could be fixed and therefore it does not work. We can get it fixed but we need it back. You can return it from where you took it, or drop it off at Jones Market to the Manager on Duty and say it is for Sally. You do not have to leave your name, but I would be very thankful once you gave it back. We cannot afford to replace it... so PLEASE do the right thing and return it to us.

The parents are friends of mine, and have done a lot of work for me, so I replaced the kid's computer.  The father wrote back:

I an sending this email simply to say thank you, I can think of no words that are adequate enough.  I thought you would like to know that when we red the card you sent, it brought [my wife] to tears, and Johnny was so happy he could barely contain himself.  Mostly because Johnny spent a few days crying over his computer being taken, and [my wife] and I had to explain that we didn't have the money to buy a new computer.

As I say, this would be classified as a minor, "non-violent" crime that Extremely Mean Prosecutors have been overpunishing, because it, and the people hurt by it, just don't count that much.  Far more important, we are constantly told, is that the United States has an incarceration rate that exceeds that of _____ (fill in the blank).  The same folks who give us this lecture then hold their cocktail parties at the Ritz Carlton to congratulate themselves on how much they care for the little guy.


7 Comments

So, Bill, I am curious what you think would be a proper punishment for whomever --- let's call him Rob --- took Johnny's (apparently broken) computer? And do you think the final sentencing decision for Rob should be made by a sentencing judge or by a prosecutor?

Let's assume, for sake of this hypo, that Rob is an older teenager (19 years old) from a low-income family who has been previously arrested (but not imprisoned) a few times for underage drinking and/or pot possession, and that he stupidly decided the "five finder discount" was the best way to get his own computer when he say Johnny's unattended computer left behind at a table.

Let's also assume that, after playing with the computer for a few weeks, Rob turns the computer into the police anonymously, but the police are able via fingerprinted to trace the crime back to Rob. When Rob is arrested, he admits his guilt and says he is sorry.

Those concerned about modern mass incarceration worry that prosecutors like you will claim that Rob should/must be sent to prison, perhaps for a very long time, for this non-violent crime. Notably, if this was in California circa 2011 and Rob's priors qualified as strikes, he could be facing 25-years-to-life as a mandatory sentence. Based on your obvious concern about this crime and its victims, would you support a prosecutor's decision to seek a 25-to-life prison sentence on these facts? Would it be fair to suggest that any prosecutor who would even threaten to send Rob away for 25 years might be reasonably viewed as "Extremely Mean"?

I do not think anyone concerned about mass incarceration claims all non-violent crimes lack any impacted victims (although this may be true for many non-violent drug possession crimes) or that that punishment ought not be imposed for crimes with real victims. Rather those concerned about mass incarceration see a problem with sentencing laws in which a prosecutor might have the power to seek a mandatory prison term of years or decades for a crime of this nature without a neutral judge being able to weigh all the relevant sentencing factors.

Doug,

Thanks for your comment. I am rushed at the moment but wanted to say a few things, subject to later follow-up.

First, the whole point of this entry is to expose the rote use of "non-violent" as intending, sneakily, to convey the impression of "non-harmful." The impression is false and should be abandoned, but it won't be.

Second, I wonder why we're immediately off to the races of "mass incarceration" without taking even ten seconds off to think about the feelings of the child victim. This reinforces my impression that crime victims simply do not count in the rush to cater to the calls for kowtowing to the victimizers.

Third, the sentencing decision should be made by the judge, within the parameters the legislature has established. The charge should be selected by the prosecutor without any interference by the judicial branch, which constitutionally and historically has no role in those decisions. What, judges don't have enough power already? Tell that to the parts of the media still yelping about Hobby Lobby.

Fourth, the decision to steal the computer was not "stupid." It was venal, dishonest and criminal, and showed zero empathy for the kid who actually worked and saved to buy it. Public policy should reward workers and savers, not thieves.

Fifth, I am not a prosecutor, and have not been one for over 15 years. I do continue to think, as I believe most normal people do, that people like this thief are undeserving of our solicitude, which is more wisely and humanely directed to the 11 year-old. If the thief wants to avoid the Very Mean Prosecutor, he has the easiest of options: CHANGE YOUR BEHAVIOR.

This piece is timely in that progressives are gaining converts of all stripes in their criminal justice platform that violent crime is the only societal harm that requires incarceration. As shown, non-violent crime can be just as impactful on its' victims.

In my view, this is part of an insidious, broader agenda to eviscerate the gains to societal order brought on by the broken- windows strategy of law enforcement-all based on a phony and disingenuous misapplication of disparate impact theory. I used the term disingenuous because logic dictates that police "stops" should be based on the type and incidence of crime in a particular neighborhood and not on national demographics.

The Obama Administration is working hard to return us to the days when police and school administrators were handcuffed and the law-abiding public and students yearning for a solid education paid the price.

Bill, I generally use the term non-violent for certain crimes to mean they are relatively LESS harmful and/or LESS serious than violent crimes. (The term non-violent also typically suggests a reduced measure of criminal intent/malice by the criminal, since inflicting violence on another as part of a crime generally involves a more vile and dangerous mental state than committing a crime without violence.)

When I believe a crime is truly non-harmful (such as marijuana possession), I try to use the term non-harmful. But when I (and I suspect others) use the term nonviolent, I think the idea is that in a scaling of severity, this crime is on the lower end. (Of course, these are crude and incomplete terms: Bernie Madoff is a nonviolent criminal of the worst sort and certainly a more serious criminal than, say, a guy who commits an assault at a bar to get another fella away from a lady.)

Meanwhile, the harm to Johnny counts plenty for everyone involved, and we have statutes in place in nearly every jurisdiction that ensures victims get their say and solicitude in the operation of the criminal justice system. You focused on incarceration toward the tail end of your post, and that is why I started talking about incarceration and asked whether you think, based on the facts I suggested, a significant prison sentence was an appropriate response to the crime you have described. It is one thing to say this is a significant crime that produced serious harm --- you have made that point well --- but it is another think to say that the only sound response to this crime would be a significant prison term.

Noting that this kind of theft could be (and sometimes was) the basis for a California prosecutor to seek a 25-to-life mandatory sentence, I followed up by asking if you think a prosecutor might be deemed a meanie if he threatened such a long prison term for this kind of (harmful but non-violent) crime.

I am pleased you showed solicitude to this crime victim, and I am glad also that others will as well. (Similarly, my neighbors' kid had his expensive bike stolen from the neighborhood pool this week, and I have expressed my solicitude toward him and his family concerning this "venal, dishonest and criminal" act.) But at issue at this stage is not whether we show solicitude to the thief, but instead whether it would be good public policy to respond to this theft with a significant prison sentence. That is the question I started with and the question I hope you will answer if/when you have the time.

Thanks, as always, for the engagement.

Doug --

You make two very unrealistic hypotheses about this case that color your thinking in ways that explain many of the differences between us.

Your first hypothesis is that the thief turns the computer over to the police, thus portraying him as having a bit of empathy. But that virtually never happens. Once it's stolen, it's gone. Thieves do not return their inventory. I wonder why you would put in that virtually-never-happens hypothesis. Could you tell me?

The second hypothesis, manufactured so far as I can see from thin air, is that there's a decently realistic chance the thief, a teenager, will wind up with a life sentence.

In fact, the far, far more likely prospect is that the thief (who is now known) will get essentially no sentence at all. There won't be so much as two hours in jail and no fine. What is most likely to happen, if the case gets prosecuted at all, is that the thief (who is a younger person, but I don't know the exact age) will get "sentenced" to maybe a year's meaningless probation. If I'm the thief, my reaction would be, "Hey, this racket pays! All I have to do is be a little more careful."

So my first problem with your response is that it hypothesizes a rare and unlikely scenario, and does so for the purpose of creating a distorted picture of how the system actually operates in a case like this.

(This is related to the use of the phrase "mass incarceration" at all. In fact, seven-tenths of one percent of the population is behind bars, meaning that 99.3% isn't. There is nothing "mass" about that degree of imprisonment).

The reason it's important to think about specifics rather than jumping off to broad "policy implications" is that specifics count. This non-violent crime spoiled a boy's summer, made him feel like he worked and saved for nothing, gave him a view of the dark side of human nature before he was ready for it, and, worst of all, forced his parents to tell him they were so close to the line financially that they could not replace the stolen item. A child was thus dragged into the kind of economic uncertainties that only adults should have to deal with, and shown that his parents cannot fully protect him. That is an emotional disaster for a kid of that age, all caused by a person without even a rudimentary sense of honesty.

This is not acceptable. The reason that I replaced the computer is not that I am Mr. Wonderful. The reason is that I think it's imperative that, now that the kid has had his childhood polluted by this episode, it's important for him to see that there are SOME people out there, anyway, who have empathy. But the damage to his confidence in his parents' ability to safeguard him is probably permanent, and beyond my ability to repair.

The point I wrote this entry to make is that the phrase "non-violent crime" is used to mask the tremendous amount of emotional scarring that can occur from "just" property crime, even when the dollar amount is small. The related point is that the instinct to adjust the system's response to the CRIMINAL rather than the VICTIM is, not only wrong per se, but the fountainhead of an entire ethos that disserves justice.

All not unreasonable points, Bill, but you continue to dodge the question that started out back and forth. I will present the question one more time but then give up trying to get a straight answer from you to a straight question:

Bill, I am curious what you think would be a proper punishment for whomever --- let's call him Rob --- took Johnny's (apparently broken) computer?

I made some (probably unrealistic) hypotheses in order to see whether you think a mandatory minimum term of imprisonment would be justified even for the most sympathetic of offenders. That is because, as you should know, mandatory minimums really only make a big difference for sympathetic offenders, except as a tool for prosecutors to encourage cooperation. It now sounds as though you know the real details of the offender, and I would wish you would share those for purposes of this sentencing conversation.

I know and respect your goal for this post, but my goal with my follow-up question was to determine whether you believe a significant term of imprisonment is essential for the crime you describe. You hint that you think some imprisonment is needed rather than simply, in your words, a "year's meaningless probation." So, how much imprisonment do you think needed to send a message:

six months?
one year?
five years?
ten years?
25 years?

You may be right that the system will operate to give this offender a slap on the wrist rather than what you might think essential. But I am still trying to understand what kind of prison term you think essential for this sort of crime (and you can/should make any hypotheses or use the real case facts as you see fit in order to answer the question).

Doug,

There are two reasons you didn't get the kind of answer you sought. The first and more important was to avoid having the point of this post walked past in favor of oft-repeated lines about "mass incarceration."

The second reason, more apt to your present inquiry, and now more appropriate to discuss, is that I believe sentences should be based on the statutes and facts pertinent to the case. Here, I know neither.

First, I don't know the relevant state law.

Second, I don't know any of the multitudinous factors that would go into the sentencing decision. For example, I don't know whether this is the thief's first, second, third or twentieth episode. All that makes a huge difference.

I don't know his age. Is he a juvenile subject to juvenile law, or an adult? Again, that makes a huge difference.

I don't know his motive. Is he Jean Valjean? Or is he in the business of stealing computers to finance his meth lab?

I don't know whether, as you hypothesize, he turned it into the cops (which is possible if grossly unlikely).

Given all these many unknowns, and their dozens of permutations and combinations, I, like any serious person, would be have to be out of my mind to state what the sentence should be. The only correct answer (or "straight answer") to your question is: Insufficient information, and far, far too many possibilities to go through each one.

I would add only this: Cases at the margin are always the most difficult, and there's always going to be a margin. That's just a fact of life. It is therefore misguided to employ marginal (or "sympathetic") cases to make broad public policy. Yes, if all criminals were the tiny batch who sit at the "sympathetic" margin, then the system is too punitive (too punitive, that is, if one disregards the numerous avenues to avoid MM's). But they aren't, and the system has served us wonderfully well for a generation.

As I noted, in a passage to which you have not responded, the person contemplating theft holds the key to his own future: CHANGE YOUR BEHAVIOR. I see no reason that the law should do for him what he could easily, but refuses, to do for himself.

Leave a comment

Monthly Archives