08 May 2007

Another California Three Strikes Injustice

A federal appeals court upheld a mentally ill man's three-strikes sentence of 25 years to life Wednesday for shoplifting two bottles of liquor from a Southern California market, a sentence that a dissenting judge called "barbarous.''...

Joshua, diagnosed as a paranoid schizophrenic, had been convicted of robbery five times since 1974 and had been in and out of prisons and mental hospitals in the decades before his shoplifting conviction[.]


From here.

The only factor that provides even a glimmer of hope for attacking this sentence on federal constitutional grounds is that there is a history of mental illness involved. But, equally egregious cases under California's three strikes law involving non-mentally ill defendants have been upheld by the U.S. Supreme Court in the past.

Everyone knows that California's three strikes law is broken; but there are enough cowards in power in California, Arnold Schwarzenegger, among them, who has talked the talk but then thwarted a reform measure, that the problem hasn't been fixed yet.

Colorado Compared

While Colorado has its own habitual offender statute, a sentence like this one for this offense, would be impossible, regardless of the Defendant's criminal history.

A theft of two bottles of liquor with a combined value of $62, as was this case here, would be a class 3 misdemeanor in Colorado, punishable by up to six months incarceration at a local jail, and a hefty fine. This would be the likely punishment for the same offense that resulted in 25 years to life for Joshua.

Multiple thefts in a six months period can be aggregated, however.

Under changes to Colorado criminal law that will take effect this summer, the cutoff for felony theft will increase from $500 to $1000. There is no provision in Colorado for sentencing a habitual offender who commits misdemeanor theft as a felon.

Minor Felony Thefts In Colorado

Crossing the $500 pre-July 1, 2007/$1000 post-July 1, 2007 felony threshold if the total amount is under $15,000 ($20,000 as of this summer) is a non-violent class 4 felony in Colorado, normally punishable by two to six years in prison, plus three years mandatory parole, plus a hefty fine.

In Colorado, probation or reduction of a sentence below the ordinary minimum sentence isn't allowed if the offender had two prior felony theft from a store convictions in the last four years (a factor that wouldn't apply in Joshua's case).

The sentencing range for class 4 felony theft in Colorado if you are on parole at the time is 4-12 years. Where the amount stolen was small and there were mitigating factors, as it appears that there were in this case, a judge would be unlikely to impose the maximum sentence within that range.

The longest punishment for a felony theft, for which Joshua would be eligible if he committed felony theft, in Colorado, applies when one has four prior felonies. The habitual criminal sentence in that case for a class 4 felony theft would be 24 years in prison (one year less than the minimum sentence in California for petty shoplifting by an offender with at least two prior felonies). With two prior felonies the habitual criminal sentence for a class 4 felony theft would be 18 years.

While these sentences are harsh, they don't approach the severity of California. Felony theft never qualifies for Colorado's life imprisonment habitual offender statute, which covers only serious violent crimes or the very most serious (class 2) non-violent crimes.

It is also worth keeping in mind that there is probably only one judicial district in the state, the one presided over by Republican District Attorney Carol Chambers whose district includes Denver suburbs Arapahoe and Douglas counties, where a district attorney would typically exercise discretion to seek a habitual offender sentence in a marginal theft case involving a man with a long history of mental illness. Almost every other district attorney in the state would accept a plea to a less severe non-habitual offender sentence in such a case.

The dissent notes that in federal court, someone convicted of stealing a billion times as much as this fellow did, receives a shorter sentence.

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