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April 8, 2008

Should the NAACP and others really be concerned about the sentencing of the Barbie bandits?

A new sentencing story out of Atlanta, covered today by the AP and the Atlanta Journal-Constitution, seems very likely to become a topic of water-cooler dialogue.  Here are the basics from the AP:

The head of the Georgia NAACP called for the state to investigate the sentences given in the so-called "Barbie bandits" bank theft case, saying the two white defendants got less prison time than two black men.  Edward DuBose said Monday he will ask state Attorney General Thurbert Baker to look into the case. Baker's office did not immediately respond to a call seeking comment Tuesday.

Last month, Cobb County Superior Court Judge Mary Staley sentenced 20-year-old Heather Johnston to 10 years probation after she pleaded guilty to a charge of theft by taking in the 2007 heist. The judge gave 19-year-old Ashley Miller two years in jail and eight years probation. Both women are white.

Michael Chastang, 28, was sentenced to 10 years for being the mastermind of the robbery, and bank teller Bennie Allen III, 23, who pleaded guilty, was sentenced to five years.  Both men are black. Chastang also is serving 15 years on unrelated drug-trafficking charges and Allen was on probation for a drug conviction.

Johnston and Miller — both former exotic dancers who went by the stage names "Charlie" and "Adrienne" — were nicknamed the "Barbie bandits" after they were videotaped wearing sunglasses and laughing as they appeared to rob a Bank of America branch in Acworth of $11,000.

Because this case seems to me to be more about gender than about race, I cannot help but wonder if the NAACP is the right group to be calling for an investigation.  Then, again, I doubt that the National Organization for Women is generally too troubled when Barbies getting softer sentences than Kens, so maybe I should not be too surprised that this case is being racialized rather than gendered.  I suppose if we really wanted to get this story buzzing, we might speculate about whether a President McCain or a President Clinton or a President Obama would be most likely to encourage the US Civil Rights division to take a close look at Georgia state sentencing practices.

April 8, 2008 at 03:55 PM | Permalink

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Tracked on Apr 8, 2008 4:36:28 PM

Comments

So let's see, the mastermind, with a serious record, gets more time than the younger flunkies, and the teller was already on probation. I am not sure there's anything here.

Posted by: federalist | Apr 8, 2008 4:14:08 PM

A sentence of probation only seems extremely light for bank robbery (in Virginia, even with a clean record, bank robbery automatically sends you to prison). There might be something there, since it looks like the female defendants who actually conducted the robbery were allowed to plead guilty to lesser charges while it looks like the male defendants were convicted of harsher charges. Especially given that Cobb County, Georgia does not have a very progressive history when it comes to race (major understatement there). One wonders how many defendants who steal $11,000 from a bank get off with probation - doubt its very many.

Professor Berman is probably right that it is probably more a matter of gender. Attractive female defendants always seem to get easier treatment by the criminal justice system.

Posted by: Zack | Apr 8, 2008 5:33:30 PM

Didn't you post about this previously (at perhaps the plea stage)? Didn't the judge even comment on the attractiveness of the defendants?

Or was that another case?

Posted by: Reader | Apr 8, 2008 5:37:30 PM

Over at C & C, KS points out that this wasn't really a robbery, since no threat of force was used because the teller was in on it.

Posted by: | Apr 8, 2008 5:44:35 PM

Considering the way Bank of America treats its customers, there getting what they deserve. It's only just deserts to be the victim of a crime when you falsely accuse others of one and don't agree to compensate them: http://www.sfgate.com/cgi-bin/article.cgi?file=/chronicle/archive/2006/08/30/BUGTGKRHSF1.DTL&type=tech

Posted by: Outraged | Apr 8, 2008 7:57:49 PM

Gosh, could the disparate treatment of offenders based on either gender or race be an argument for (GASP!) binding guidelines????????

Posted by: anonymous | Apr 8, 2008 9:54:07 PM

Even if not a real "robbery," (and Kent may not be accurate that it would not meet the definition since the victim there is the bank and the appearance of using force can create the same amount of danger that an actual robbery could because a third party could fight back (obviously, bank employees are trained to not resist robbers) so it is easily possible that they could have put another person at fear or risk) they could have been convicted of the substantive offense and conspiracy to commit the substantive offense. How many times has anyone here seen someone take $11,000 from another and get off with probation only? Why were there no conspiracy charges brought? Why didn't the prosecutor simply find a different bank employee or customer who said that they feared for their safety (all that would be required for a robbery conviction - the appearance of a threat is all that is needed even if the threat is a cover - again, due to the fact that fake threats are just as dangerous to public safety as real ones).

I think the people who are trying to defend the sentence given the women are ignoring that the objections people are raising is over the treatment of the women - no one is arguing that the sentence given the men is unreasonable. Thus, the usual parties who have to disagree with everything the NAACP claims are busy trying to defend light sentences for some even though the same parties generally are of the "lock em up and throw away the key school." Thus, the brillance of the NAACP tactic - by focusing on the treatment of the Whites, they are getting their usual opponents to have to argue in support of lighter sentencing.

Posted by: Zack | Apr 9, 2008 1:55:12 PM

I'm not sure I would call the NAACP's tactic "brilliant"--disingenuous is the word that comes to mind.

I don't think people are really defending the sentence given to the women, I think that they are simply attacking the BS coming from the NAACP. At the end of the day, this was not that big of a crime. No one got hurt, no one was going to get hurt and the amount of money was relatively small. Now, I am more than willing to use small crimes like this as a means to get career criminals off the streets, but bringing the hammer down on minor criminals because of racial optics is simply intolerable in a system that is advertised as adhering to the rule of law. As is the suggestion that we should be lenient because of optics as well. Either way, the NAACP, once again, shows its fundamental unseriousness.

Posted by: federalist | Apr 9, 2008 3:26:44 PM

Thanks for proving my point, federalist.

Posted by: Zack | Apr 9, 2008 5:35:53 PM

Also don't ignore the fact, that if the prosecutors had really wanted to, they could have easily convicted these women of robbery (the teller isn't the victim of a bank robbery, the bank is, so the fact that the teller was part of the conspiracy is irrelevant under substantive robbery law - what matters is that a person be put in fear, not hard to prove with a bank robbery, even a "fake" one and it is also not hard to prove that a "fake" bank robbery raises a legitimate risk to public safety) and conspiracy to commit robbery.

Posted by: Zack | Apr 9, 2008 5:45:05 PM

Well, Zack, I'm not sure that a false threat of force directed at someone who knows it to be false satisfies the element of force under Georgia law. Bottom line is that this was not a crime that involved violence or the threat of force. Yes, something could have happened, and if someone had gotten hurt, I would be advocating the hammer, big time. But the NAACP's position is that the racial optics look bad, and therefore, the black criminals should get a break. This is transparent to even the most casual of observers. And I don't see how this proves your point in the slightest.

Posted by: federalist | Apr 9, 2008 6:43:49 PM

Long sentences are mostly driven by the fear of the defendants.

Barely adult white female strippers don't frighten judges. Black men in their mid-20s do. Anti-discrimination laws have difficulty defeating that intuition.

These stereotypes don't come from nowhere. The bank robbery rate of black men in their mid-20s is an order of magnitude higher than the bank robbery rate of white women who are 19 or 20. Biases in the criminal justice system impact incarcerations as a result of conduct like bank robbery, but no one seriously doubts that the actual crime commission rates for these groups are very different.

But the problem is that the judges don't have before them "typical" individuals of any age, ethncity or gender. They have people who are, in the lion's share of cases (including this one), undisputably guilty of a crime, although there are often disputes about how serious of a crime that is and how much of a risk to the public the offender poses. In contrast, the lion's share of people of all ages, ethnicities and genders never commit any serious crimes.

One relies at one's peril on intuitions that arise from average or typical situations in a forum that handles predominantly atypical cases.

But participants in the criminal justice system from cops to prosecutors to judges also have reasonably reliable knowledge about what motivates "typical" defendants convicted of robbery and their likelihood of continuing a life of crime if given that opportunity, and have developed a consensus about what sentences are appropriate in those cases.

I suspect that part of what happened in the Barbie bandits case is that the judge was not comfortable that the sentencing intuitions the judge developed in typical robbery cases applied here. Put another way, the judge probably was not comfortable in believing that the judge knew enough about the motives and recidivist tendencies of the Barbie bandits to be sure that a long prison sentence was the right choice. The reasoning behind a long probation sentence was probably that if the judge was wrong in giving these young women the benefit of the doubt that they would soon return to have their probation revoked, reducing the cost of mistaken mercy in the long run.


Posted by: ohwilleke | Apr 9, 2008 7:34:19 PM

Federalist - unless the co-conspirator was the only other person in the bank it is a very easy test to meet because one does not have to show that actual force was used to be robbery, merely the threat of force or intimidation as the following examples show. Remember also that the force or the constructive force or intimidation as an element of robbery does not have to be applied to the actual victim but only to another.

DA: "And how did you feel when this was happening?"

Other bank employee or customer: "I was scared."

or

DA: "What did the defendants say when they entered the bank"

Witness: "Everyone stick your hands up this is a robbery"

or

DA: "Where were the defendants hands at this point?"

Witness: "one of their hands was hidden from view in a pocket appearing to grasp an object. I was afraid that they had a gun."

or

DA: "Please read the note that the defendants handed to the teller marked as People's exhibit 2"

Witness: The note said "This is a robbery, we have a bomb. Put all of the money in this sack, no dye packs"

Any of the above is sufficient force for a robbery conviction - it doesn't matter whether they actually have a weapon or not. It does not take a lot of force to satisfy the force requirement - for example, purse snatchers are routinely convicted of robbery merely for breaking the shoulder strap of a purse.

Force doesn't have to actually be implied to be robbery, it can be merely implied. A defendant sticking their hand under their shirt with their finger pointing out resembling a gun is just as guilty of robbery as the defendant who actually has a hidden gun.

Posted by: Zack | Apr 10, 2008 2:43:33 PM

Just curious, is there evidence for all of your hypos? I haven't read all that much about this--I thought that they simply handed the note to the teller and he gave them a bunch of cash.

I know it doesn't take a lot to satisfy the force requirement. And purse-snatchers should be convicted of robbery. But this case smells a lot more like embezzlement than robbery, and no amount of spinning by you or the NAACP can change it. And as I recall, weren't you the one defending a lenient sentence where a gun was pulled on a real person?

Posted by: federalist | Apr 10, 2008 3:10:02 PM

I'm not spinning at all - I'm merely pointing out that legally, actual force is not required for a robbery conviction which was correcting another poster's post. Those were general examples of what could qualify as "force, threats, or intimidation." Also, since robbery is a continuing crime, you also have to keep in mind that if they had to use a threat to get out of the bank with the money (and I seriously doubt that one teller could hand them $11,000 and have them walk out without presenting some sort of threat - banks just do not operate that way). I do wonder if the teller was in fact, convicted of embezzlement which often gets punished harsher than larceny.

I have no knowledge whether the Cobb County prosecutor's office operates in a racially discriminatory matter or not. Knowing what I know about Cobb County, Georgia (which has an absolutely appalling history of race relations), I could see it as a definite possibility.

I am not opposing the use of prosecutorial and judicial discretion to show mercy to defendants. However, if there is a pattern which shows that the prosecutorial discretion is repeatedly used to benefit dfendants of one race only, then there is a legitimate problem. That is what I understand the NAACP to be asking the state attorney general to look at, which is a perfectly valid thing to ask. There was no allegation of unfair treatment by the Pennsylvania judge and prosecutors - it appears that in that court, every defendant is treated the same regardless of race - that is all you can ask for whether a judge or prosecutor is lenient or harsh. If a prosecutor throws the book at everyone, or lets eveyone off the hook, that is acceptable in our system - if voters don't like it, they can vote for someone else. However, if the prosecutor throws the book at Black defendants and is lenient to White defendants, that is pure and simple racism.

As I said above, chances are these defendants got a break because they were attractive women, not because they were White. But I also suspect that the NAACP wanted to call for an examination of Cobb County's treatment of minority vis a vis White defendants and was waiting for a high profile case with White and Black codefendants.

You are the only one who is spinning here.

Posted by: Zack | Apr 11, 2008 9:24:57 AM

Zack, you make a lot of suppositions. In any event, you're willing to impugn the integrity of the prosecutor with your speculation. Nice. The NAACP simply pointed to the disparity in this case and screamed bias without taking into consideration any other facts. They don't like the optics, and they are going to bitch about it.

And as for the NAACP generally, given its appalling statements on the Duke lacrosse case and so many other things, it's extremely difficult to take anything it says very seriously. Let's face it--when one of your priorities is to stop the execution of a quadruple murderer (Tookie Williams) by pointing to ridiculous theories of innocence, then you have a serious credibility problem.

Perhaps, instead of taking up for killers and career criminals, the NAACP can try to get justice in a case like this: http://www.masslive.com/news/republican/index.ssf?/base/news-13/1206688809300790.xml&coll=1

Posted by: federalist | Apr 11, 2008 10:11:41 AM

It's tough to say what John McCain would say. John McCain's belated reaching out to African Americans on Martin Luther King Jr day was twenty years after he'd been dismissive of honoring King with a holiday. McCain would alienate a significant portion of his base if spoke up for more equal sentencing while McCain risks little by keeping quiet. Unfortunately, the neo McCain is nothing like the image of the ol' McCain that has been built up by the media. Wasn't McCain against the confederate flag before he was for it?

Posted by: No John McCain | Apr 12, 2008 8:09:13 PM

Federalist, people would take your arguments a lot more seriously if you would consider other facts - for example, the history of Cobb County. It is simply not rational to totally dismss the idea that racism continues to plague the criminal justice system of a county with an extensive of a history of White Supremacist activity absent a major change in population base (as has happened with nearby Dekalb County).

Posted by: Zack | Apr 15, 2008 10:54:11 AM

if all four of the defendants were black males, no one would say shit. This happens all the time when there are several defendants, some get jail time, others cop a plea, while others get lighter sentences or immunity for testifying. I notice one barbie got 2 years. In murder for hire example, the master mind sometimes gets death while the person pulling the trigger gets life or less....deal with it...it doesn't matter what county, state, race, etc. Also, I live in Memphis Tennessee, listed by the FBI as being the most dangerous city in America...who do you think is causing all the problems, men or women, black or white? People with previous criminal behaviors should get higher sentences, and the people who previously posted are right, two men got together (one an insider) and said "hey look barbie's, we got this thing, you just walk in with a note and bennie here will turn over the money" it's NOT the same as planning and committing an actual gun-toting robbery of strangers....its...JUST...NOT...

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