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June 1, 2018

Another notable example of mandatory minimum sentences driving severe outcomes even when not applied

Old and new media is buzzing today about severe sentencing story out of Georgia involving a 15-year-old sentenced to five years of imprisonment for stealing a pair of sneakers.  Before getting to the details of the story, I am inclined to encourage readers to (A) think about what kinds of facts might lead to a teenager getting five years in prison for stealing a pair of sneakers, and (B) think about whether they already have an inkling about the gender and race of this teenager. 

Like all sentencing stories, this one has nuances and this AP account provides more of the nuanced details than some others I have seen (with a few sentences highlighted to connect the story to the title of this post):

A judge and prosecutor said Friday that a five-year sentence given to a Georgia teen who stole a pair of pricey shoes was appropriate because a gun was used during the robbery. Dayonn Davis, who was 18 when he was sentenced this week to five years in prison followed by 10 years of probation, was charged as an adult even though he was 15 when the crime was committed and his lawyer said he had no prior record.

Prosecutors Sadhana Dailey said in court that Davis contacted the owner of the Nike Oreos — so called because they're black and white — after seeing them for sale on Facebook, according to the Ledger-Enquirer.  They arranged to meet at a Columbus park on Jan. 17, 2016.  Another male went with Davis to the meeting.  When Davis tried the shoes on, he told the seller, "These shoes is took." The other male pulled out a gun and everyone fled, the newspaper reports.

"This was an armed robbery. It's not a theft.  There's a big difference between a theft and an armed robbery," Dailey told The Associated Press on Friday in a phone interview.  "The teen victim was robbed at gunpoint."  Columbus police quickly identified Davis, who had the shoes in his closet.  Davis initially told police no one else was involved but eventually gave a name, but the seller of the shoes couldn't identify the person in a photo lineup as the gunman, the newspaper reported.

Davis was charged with armed robbery and reached a deal with prosecutors to plead guilty to robbery by force, which allowed him to avoid the mandatory 10-year sentence that comes with an armed robbery conviction, Dailey said. "He got a break," she said.

Defense attorney Susan Henderson told Muscogee County Superior Court Judge Bobby Peters her client just wants to put the whole thing behind him and move on, the Ledger-Enquirer reported. "He's been extremely remorseful," she said. "He's got his life on track now."

She insisted Davis didn't know the other person would pull a gun. But the judge says that makes little difference in the eyes of the law. "I was young at the time, so I wasn't in my right mind," Davis told the judge.

Judge Peters called the case an unfortunate situation and told the AP he would rather it have been handled in juvenile court.  Dailey said it was appropriate to charge Davis as an adult because of the seriousness of the crime.  Peters told the AP that Davis will likely be released on parole before completing his five-year sentence. Because it's a first offense, Davis' record can be expunged if he successfully completes probation, Peters said.

I suspect that few would dispute the statement by the prosecutor here that "there's a big difference between a theft and an armed robbery," or that an armed robbery ought to call for more punishment than a theft.  But, especially on the facts as described here, the notion that this teenager "got a break" seems quite disputable ... except in light of the seemingly applicable  mandatory 10-year sentence for this kind of offense.

If one fully embraces mandatory minimum sentences as a legislature's definition of the lowest justifiable sentence for a particular form of criminal activity, then one would have to say, like the prosecutor here, that this teenager got a huge break.  But then again, if one fully embraces mandatory minimum sentences as a legislature's definition of the lowest justifiable sentence for a particular form of criminal activity, then one would also have to say that the prosecutor here has no respect for the rule of law when opting to give this teenager a huge break.  So, this case provides another example of what mandatory sentences really do: they put sentencing powers in the hands of prosecutors while creating harmful distortions to the scale of punishment  and to commitments to the rule of law. 

June 1, 2018 at 04:48 PM | Permalink


And, as the judge notes, this never should have been charged in adult court. Those decisions inevitably strike me as arbitrary. And talk about abuse of prosecutorial discretion . . . .

Posted by: Fat Bastard | Jun 1, 2018 7:26:51 PM

“they put sentencing powers in the hands of prosecutors while creating harmful distortions to the scale of punishment and to commitments to the rule of law.”

By this logic, then all sentencing power is in the hands of the prosecutor by virtue of the discretion to charge at all. The fact is the defendant has all the power not to commit the crime, or not to commit a crime that carries a mandatory minimum.

In the aggregate the legislature has authority over sentencing. In an individual case the power rests with the defendant’s choice to commit the crime and to what degree, then it shifts to the prosecutor in the charging function and then finally the power goes to the court. Of course plea-bargaining also gives some of the power back to the defendant assuming there is plea bargaining. Since in many states plea bargaining is supervised with Court approval, the court still gets a say.

Why is it that we are continually hand wringing over this. Where is it written that the only way justice can result is if the court has plenary authority over sentencing. The only plenary authority is the defendant who can not choose not to commit crime. The rest of the process is subject to rules and (varying) degrees of accountability.

Posted by: David | Jun 1, 2018 9:45:59 PM

David, I agree that defendants have a certain kind of sentencing power through decisions about how they commit a crime though most do not know they are exercising this power because most do not know the sentencing rules. I also agree that all prosecutorial charging decisions involve the exercise of sentencing powers, but mandatory minimums make that power much more consequential and limit how that power can be checked by a sentencing judge (though the adult/juve court charging power is also VERY consequential and in some states it cannot be checked by judges).

Meanwhile, even defendants do not have "plenary authority" in the way you suggest because many innocent persons get charged with crimes (and guilty people get charged with crime more aggravated than they actually committed). And the hand-wringing is based in part on how MMs distort decision to assert innocence and plea negotiations --- e.g., Weldon Angelos was offered a plea deal for low-level marijuana dealing of 15 years(!) because he had a gun with him. The offer was 15 years because prosecutors knew they could charge, based on gun MMs, charges requiring 105 years in prison, and so prosecutors seemingly thought a 15-year offer was a break. Weldon asserted his innocence on the gun charges, PREVAILED on his claim of innocence for some gun charges, but still got a 55-year sentence! Crazy cases like Weldon's --- which is extreme but not really distinctive --- is why I will not stop my hand-writing over MMs.

That all said, I respect the notion (perhaps implicit in your comments) that the REAL problem is not MMs in the abstract but rather just their severity in some cases, especially in the federal system where not-so-serious crimes can carry decades-long minimum terms. I do think if MMs were always set at 5 years or less and/or were never applicable to offenders with little or no criminal history, then I would generally not worry quite so much about how they put sentencing powers in the hands of prosecutors while creating harmful distortions to the scale of punishment and to commitments to the rule of law. But even non-prison MMs --- e.g., mandatory placement on sex offender registries or mandatory restitution --- create rule-of-law problems because of the eagerness of folks to avoid or bargain around their terms.

Posted by: Doug B | Jun 2, 2018 9:37:51 AM

The sentence is harsh, but not inappropriate. Armed robbery is a serious felony.

I wonder how many parents and other children will take a lesson from this sad story.

It is funny that Doug has been tooting his horn about Mr. Charles--a poster boy for why we have MM for recidivist criminals. Seizing on the happenstance of a guy who was let out but should not have been is interesting, to say the least.

MMs exist because lenient judges and parole boards (see, e.g., Kenneth Macduff) couldn't be trusted to strike the right balance.

Agree with Doug's point that prosecutors need more supervision and the hammer needs to drop where there is abuse.

Posted by: federalist | Jun 2, 2018 10:42:39 AM

I agree that minimum mandatorys can create flawed incentives for the overcharged or the innocent, but why isn’t the remedy to eliminate plea-bargaining in minimum mandatory cases entirely? Now you know as well as I do that the defense bar would go crazy at such a rule. So would the courts, but not for the reason many think. It isn’t fairness or individualized sentencing, they just don’t want to have to try that many cases.

The vast majority of defendants are guilty and the defense bar knows it. They are not willing to give up plea bargaining in minimum mandatory cases because it benefits so many of their guilty clients; not even if it eliminates the perverse incentives for the overcharged or the innocent to plead guilty. Instead of the issue just gets framed in terms of getting rid of minimum mandatorys.

Posted by: David | Jun 2, 2018 11:00:13 AM

David: I am unclear about what you propose. How would we "eliminate plea-bargaining in minimum mandatory cases entirely" given that often it is plea-charging negotiation/decision that are in play. The federal CP cases are great examples where downloading the wrong porn can be charged as receipt with a 5-year MM or possession with no MM. Are you saying federal prosecutors should never be allowed to charge only CP possession because every case also obviously fit the receipt MM statute?

I agree that plea practices are troubling, but MMs make them worse AND also operate in ways that undermine fairness and individualized sentencing even when there is no plea offered or none accepted.

federalist: I have done one post about Mr. Charles, which seems hardly proof of horn tooting. You here bring his case up again, which I find interesting.

Posted by: Doug B | Jun 2, 2018 4:19:20 PM

I find myself less and less comfortable trusting your framing of criminal law stories, which may or may not be of any concern to you.

The headline of this story primes the reader to think about mandatory minimums. Your post then opens with, "Old and new media is buzzing today about severe sentencing story out of Georgia involving a 15-year-old sentenced to five years of imprisonment for stealing a pair of sneakers."

So, this story is about a "severe" sentence involving a "15-year-old" who was sentenced to "five years of imprisonment" for "stealing a pair of sneakers." I let that sit for a moment and think, 'wow, lot of prison time for just stealing some sneakers.' then I read the AP article and this tidbit about a gun is introduced. Adding that a gun was involved, without any other information, conveys a different image then saying "stealing a pair of sneakers." The reader continues with a different image in their mind of the story.

Just last week you had a post on an unfortunate headline used in the case of a criminal story, and that you dig deeper to see what was going on. The writers of those headlines are doing the same as what's done here, and on most legal blogs (okay, on the whole internet...and tv...and print...) framing and priming the reader in an effort to persuade. I Googled "Sadhana Dailey Georgia" and Im intrigued by different headlines used by different outlets reporting the exact same story, and how they all set-up the story for a specific arguemnt.

I am not in agreement with the Georgia sentencing law, or the prosecutor's decisions. But, I'm also not a citizen of the state of Georgia. The law in question was enacted by an elected legislative body. The law was enforced via the decision-making of a prosecutor serving under an elected District Attorney, and judgement was handed down by an elected Superior Court judge. The people of Georgia and the Columbus judicial district have a different view of justice than I do. They elected representatives that share this view.

That this local event is now a national story, as is typically the case with the snowballing of local politics in an information environment, is probably one reason why we continue to federalize criminal policy. I may not be able to bend Georgia to my will, but I can vote for federal officials that share my sympathies and support making Georgia change.

Everything shall comport with my preferences!

Posted by: Anonuser879 | Jun 2, 2018 6:52:45 PM

Professor Berman,

As a state court prosecutor who deals almost exclusively with violent crime the idea of not filing until the case has been negotiated is simply not something on my radar screen. Frankly I’m not advocating to eliminate plea-bargaining as a matter of law. I do agree that it’s practice should be substantially curtailed to avoid the harms which you properly identify. Indeed, I think that it should be the exception as opposed to the rule.

Prosecutors should identify the crime committed, plead it and then, if the defendant wants a jury trial, prove it.

Posted by: David | Jun 2, 2018 7:55:58 PM

Anonuser879: I understand and largely agree with your point, because I had the same reaction when pulling up the media stories on this case. That is why I replayed the "soft" language describing the crime and urged readers to "think about what kinds of facts might lead to a teenager getting five years in prison for stealing a pair of sneakers." I wanted to encourage all to see how these kinds of cases can be framed for various purposes. And I do not think I or others assert that Georgians should not be allowed to operate criminal laws as they desire --- my chief point is to highlight another case that shows how mandatory minimums function to put sentencing powers in the hands of prosecutors while creating harmful distortions to the scale of punishment and to commitments to the rule of law. If Georgians (or any other democratic political units) want mandatory minimums nonetheless, that is their prerogative. But I will keep trying to help folks see the impact and import of MMs.

David: I am more familiar with federal processes, and I appreciate how different indictments and plea practices may be in various state system. But these issues can also arise through superceding indictment or addition of "specs" even after an initial indictment. I see this all the time in the federal system, though it is not exclusive to cases with MMs --- it just seems like a common practice in contested cases for prosecutors to (a) file more charges if/when a defendant seems inclined to contest initial charges, and/or (b) threaten to file more charges if a particular plea deal is not accepted.

I wonder if favor a system in which judges are more involved in reviewing charges and plea dealing/terms. In the federal system, this is considered bad form and very limited, and I sense it is more common in some states. I see pros and cons in more judicial involvement, but the functional impact of MMs leads me to be inclined to want to give judges a greater role if only to provide a bit more of a check on and more transparency to prosecutorial power.

Posted by: Doug B | Jun 3, 2018 10:29:10 AM

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