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October 8, 2007

D'oh! A potential life sentence for stealing a single doughnut?

Homer_donut A kind reader sent me this local story from the Saint Louis Post-Dispatch about a case that sounds almost as if it came from the pages of a script for The Simpsons.  The headline is "52-cent doughnut may cost man 30 years to life," and here are the basics:

Country Mart's doughnuts — fried fresh daily in the store — sell for just 52 cents each. That is why the "shoplifters will be prosecuted" signs are displayed in aisle 4 with the pricey pain and allergy pills, and not in aisle 5 beside the glass doughnut case with its tiger tails, jelly-filleds and eclairs.  Then one man's sweet tooth got the better of him. He stole a doughnut.  A single doughnut.

Authorities called it strong-arm robbery. The "doughnut man," as the suspect is now known, faces five to 15 years in prison for his crime.  And Farmington, a town of 14,000 people about 70 miles south of St. Louis, has been buzzing about it ever since.   "That someone would take just a single doughnut, not something very expensive or extravagant, that's unique," supermarket assistant manager Gary Komar said, smiling.

Scott A. Masters, 41, is accused of shoplifting the pastry and pushing a store worker who tried to stop him.  The worker was unhurt.  But with that shove, his shoplifting turned into a strong-arm robbery. Masters, who appeared in court Friday, is stunned.  The prosecutor shows no signs of backing down.  In fact, because Masters has a prior record, he could get a sentence of 30 years to life.

October 8, 2007 at 11:40 AM | Permalink


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It's sad, but unfortunately this kind of prosecutorial abuse is too common. What happened to the compassionate conservatism that Bush campaigned on? How can a person be sent to jail for stealing food? They can't argue that it was for profit, because it was just one.

Pretty soon we will have most of the world prisoners in the world's freest nation.

Posted by: EJ | Oct 8, 2007 12:35:40 PM

Is there any indication that the Bush administration, or even a Republican is behind this.

However, read the whole article. This is more than just simple theft.

Also, there is no indication that there is a mandatory sentence, or the prosecutor is actually asking for that much time in jail.

Quite frankly, stories like this don't help defendants. They make it harder for counsel to convince prosecutors that the equities of this case demand a much lower sentence.

Posted by: S.cotus | Oct 8, 2007 1:33:27 PM

In Michigan, larceny in a building is a felony, regardless of the value of the merchandise stolen. After a man was prosecuted for petty larceny, a misdemeanor, for eating a grape in a grocery store without paying for it, he refused to plead guilty. The prosecutor dismissed the misdemeanor, and prosecuted him for the felony of larceny in a building instead. As a result, the legislature amended the statute, and forbade felony prosecutions in the typical shoplifiting situation. Such prosecutorial folly invites courts to dismiss the felony charges as abuses of prosecutorial discretion, on a case-by-case basis, and legislatures to prohibit it in all cases.

Posted by: Greg Jones | Oct 8, 2007 3:31:05 PM

Mr. Jones explains a rather typical path of a “big” legal issue that won’t make it into law school texts.

1) Broad statute, which only works if prosecutors develop a coherent framework to exercise their discretion in
2) Prosecutors fail to do #1 (this is especially apparent in “lower” value crimes where the politically-accountable prosecutors take little interest in)
3) Courts develop their own regime, but because courts generally work on a case-by-case basis (and some dismissals are not appealable) the appellate caselaw doesn’t provide a comprehensive framework and prosecutors whine about how cases are getting dismissed on a “random” basis.
4) Legislatures figure out what is going on, and try and fix #1

I see this cycle in many places, but on some issues the jurisdiction is only in an intermediate step, people just whine.

Prosecutors are aware of this. And while most would prefer to be in #1, rather than #3, sometimes they slip up, and get to #2.

Posted by: S.cotus | Oct 8, 2007 6:03:04 PM

This is no surprise. Prosecutorial abuse is more common than not. Show me a prosecutor that isn't bucking for a promotion at the expense of the legal system - now that's news.

Posted by: babalu | Oct 8, 2007 6:53:55 PM

S.cotus misses some steps. For example;

- Step 2a, "Prosecutors, who for example might be up for election or have lots of loans to pay and are itching to get to the private sector, search the books to find a statute if broadly construed – and thus unconstitutionally –might work.”
- Step 3a, “Courts, already mostly full of law enforcement zealots, don’t care that prosecutors are being so creative and turn a blind eye to legitimate ‘whining’ by folks getting screwed.”
- Step 4a, “Legislatures, who don’t worry too much about felon vote, also don’t worry too much about the abuses going on as described above, as they are mostly full of folks who like to be free to remind anyone who will listen how tough they are on crime.”
- Step 5, “Once in a blue moon someone on a court of appeals wakes up, and finds the time and interest to reverse one of the convictions resulting from the above. This makes it look like, at a minimum, we are lurching forward towards a more just society when in fact the overwhelming trend is that we go backward. But, to the great relief of academics, these perceived forward lurches gives them something to apply their otherwise little used analytical skills.”

Posted by: Anonymous | Oct 9, 2007 1:59:31 AM

Babalu, I disagree. There are certain behaviors by prosecutors that I don’t like, but I but for the most part prosecutors are not drunk on power. The biggest “abuses” that I have seen have been by the “smallest” prosecutors who really didn’t know what they were doing in the first place. They ended up wasting a lot of government money for no real gain. (Actually, I always wanted someone to do a study on this.)

Anonymous, First of all, in the “big ticket” crimes – i.e. real felonies – there is generally lot less vaguely then in the low-level crimes. Why? 1) The definitions are generally copied from the MPC or others states; and 2) because of the size of the sentences there is more incentive to appeal so there is more of a “healthy” body of appellate authority.

At the “low” end of crimes it is easier to have more vaguely. People don’t appeal. (In fact, in some jurisdictions, judges can and routinely do “sentence” people in a manner which involves no supervision and no incarceration, and no judgment. So, unless someone wants to take it up on mandamus or try the Supreme Court (which has never been done), there is no statutory means to appeal.) But, the “elected” prosecutor (if there is one) only takes passing interest in what the misdemeanor prosecutors are doing anyway. Even if he runs a good shop, he won’t be re-elected by having an efficient misdemeanor section, or even an over-reaching one.

Secondly, most elected prosecutors don’t want to go back to the private sector. I have rarely seen this. Being an elected prosecutor is an acquired taste.

Third, your statements about courts being “law enforcement zealots” makes little sense. Even if you were some sort of “law and order” nut when you became a judge, you would quickly become a “let’s clear the docket” nut, especially at the misdemeanor level. Therefore, massive overcharging (and raising of the stakes) will put a crimp in your style. So, if you don’t start dismissing the “frivolous” charges on your own (upon motion), there will soon be reversals, and you will have to go though the whole cycle again.

(And, quite frankly, I have seen very few judges that could be characterized as “law enforcement zealots.” There is no reason for a judge to make the lives of low-level prosecutors easy.)

I am glad that people are beginning to study racial disparities in misdemeanor offenses. I don’t know what the eventual results will be, but it might shed some light in this area.

Anyway, you seem to have a view of criminal justice that is informed via word-of-mouth and newspapers. I don’t really see what this has to do with anything, anyway.

Posted by: S.cotus | Oct 9, 2007 7:35:50 AM

Before you start hollering about prosecutorial abuse, you might want to remember that the charge in this case is not about the doughnut or its 52 cent price tag. It is about the use of force to commit a theft offense. It is that use of force which separates robbery from theft. It is that use of force which makes the crime of robbery inherently more dangerous than a simple shoplifting. Yes, the store employee was not hurt. That does not change the fact that he or she could have been. Finally don't forget about the fact that the defendant in this case has a prior record. That almost certanily factored into the decision on what to charge. We, of couse, don't know what that prior record is. But assuming that it includes prior thefts and/or a history of violence, I can't say that I wouldn't have made the same decision. I don't think that assumption is any greater stretch than to assume that the prosecutor in this case was drunk on his own power and abusing it.

Posted by: Rural County Prosecutor | Oct 9, 2007 2:08:09 PM

RCP, It is even simpler than that. It is unclear as to exactly how much time the prosecutor really is seeking.

I would like to know the initial plea offer. My guess it is for less than 5 years.

Posted by: S.cotus | Oct 9, 2007 2:59:15 PM

When I worked in law enforcement, it was common practice to charge burglary of an occupied dwelling if the shoplifter was not in possession of sufficent funds to pay for the stolen item. Pretty serious... it was a potential 15 year felony.

Posted by: JJ | Oct 10, 2007 2:10:39 AM

I wish I’d been informed by word of mouth and the newspapers, as that would mean some were onto the massive amount of abuse going on here.

Less vagueness in the “’big ticket’ - i.e. real felonies”? Look at what Andersen, Quattrone, Westar's Lake and the Enron Merrill Lynch defendants have been going through, to name a few off the top of my head. Similarly, please don’t overlook the widespread use of (1) allegations based on broadly construed interpretations of the wire fraud statutes, and (2) conspiracy allegations, which among other ways are used to flog out lots of pleas and then to pile on a bunch of extra years in jail based upon alleged overt acts of alleged co-conspirators.

There was an either/or in my examples of the incentives to which certain prosecutors may respond. Some, as you say, like getting re-elected, others the big bucks promised by the private sector. About the latter, that the revolving door spins wildly in the directly of the private sector is certainly no secret and not debatable.

On the bent of sentencing judges, this blog is replete with examples of judges who continue to ignore the invitation of the Supreme Court to exercise some “mercy,” instead bending over backwards to avoid the spirit if not the letter of its recent sentencing rulings.

And there seems to be a large amount of “proof in the pudding” here, given the super-sized incarceration rates in this country. But apologists fiddle, while Rome burns. You too, S.cotus?

Posted by: Anonymous | Oct 10, 2007 9:01:24 AM

JJ, I would need to a lot more details. Did the police alone have discretion to file initial charges? Or, was this the practice of the prosecutor’s office? Would standard plea offers include an offer to reduce the charge to simple larceny? How many convictions were obtained on the burglary charges as a percentage. My guess is that most, if not all, of the charges were reduced or dropped and the prosecutor did whatever he could do to avoid adverse appellate authority. Perhaps you can cite a case from your jurisdiction which approves the use of that charge for shoplifting.

Anonymous, As you might have guessed, I don’t hold non-lawyers in high regard. Your post reaffirms my position.

I am curious to know where the Supreme Court directed judges to use “mercy.” If you can’t cite the specific passage, I will conclude that you made it up.

I am unclear what your problem is with the charging of white-collar offenses. Are you saying that they are overcharged? Undercharged? Or are you claiming that conspiracy statutes are overused. (As to the last one I might tend to agree with you, but I honestly have difficulty understanding you.)

I do not know what the ideal incarceration rate should be. Perhaps 35%. Maybe more. There are reasons to aim for a higher one, and reasons to aim for a lower one.

Posted by: S.cotus | Oct 10, 2007 10:23:15 AM

S.cotus, my friend and fellow lawyer, you need to get out a bit, broaden your knowledge base. Apparently you aren't familiar with a lot of what's going on out there in the legal world, yet still make a lot of definitive statements that should at a minimum be qualified.

Posted by: Anonymous | Oct 10, 2007 11:06:57 AM

You need to provide specifics. You did not.

Posted by: S.cotus | Oct 10, 2007 12:37:37 PM

I keep hearing not all Judges, prosecutors are not power hungry, overzealous etc., the fact of the matter is one bad apple is one too many, period. That one, ruined lives and perhaps get away with it. Why aren't they in jail?

Posted by: | Oct 11, 2007 12:39:00 PM

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