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Appellate judge urges courts to remember poverty is not a crime


Appellate judge urges courts to remember poverty is not a crime

On behalf of Patrick T. McNally, Attorney at Law | 
January 4, 2017

In 2012, a 40-year-old homeless man named Harley was arrested for stealing quarters from a vending machine on a university campus. He had simply walked into a campus building during the daytime, unarmed and threatening no one. He used a bent coat hanger to fish out the quarters without damaging the vending machine. His take was $44 dollars.

He was convicted of burglary committed in a school and sentenced to 12 years in prison by a fed-up judge who wanted to make a point.

You see, Harley had a fairly long criminal history — a total of 28 convictions. Several were for pilfering coins from vending machines. Most of the convictions were for petty theft, and none was for a violent or even serious crime, although seven of them were felonies. From the judge’s point of view, this made Harley a “career thief.”

The sentencing judge called Harley’s criminal history “egregious.” According to the appellate opinion, the judge ranted that “nothing up to this point has made an impression upon you. Maybe my twelve-year sentence will make an impression on you.”

A 12-year sentence for jiggling less than $50-worth of quarters loose from a campus vending machine? Because the charge was burglary committed in a school, a person with Harley’s criminal history faces a mandatory minimum sentence of six years. Under the circumstances, the judge could theoretically have sentenced Harley to 30 years in prison.

“Judges must keep in mind that poverty is not a crime”

The state’s court of appeals has just overturned Harley’s 12-year sentence. Appellate courts give a great deal of deference to sentencing judges. Moreover, when a sentence is within the range provided by statute, there must be a compelling reason to overturn it.

In this case, the appeals court found the 12-year sentence grossly disproportionate to the crime. If the vending machine had not been on school property, Harley could have been sentenced to as little as a year. The increased sentences handed down for campus crimes, the opinion notes, are meant to “protect the public from murderers and rapists, not penny-ante pilferage.”

Just as important, the sentencing judge should have considered mitigating circumstances. Harley was poor and homeless. The condition of poverty “every day presents a struggle for the poor to survive, to cope, to get by until tomorrow,” wrote the appellate panel. “When one is poor, drifting into petty crime can become an option, despite its undeniable risks.”

“A paltry crime for a paltry sum does not warrant the unpaltry sentence of 12 years,” the court concluded.

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