Wednesday, August 19, 2009

CRIMINAL: Cruel and Unusual: How Prosecutors Punish Criminals

Our United States Constitution tells us that we citizens cannot be tried for the same crime twice. For example, if we are charged with murder and a jury finds us not guilty, we cannot again be brought to trial for the same murder later. Double jeopardy is against the law of the land.

We can, however, be sued. For those who remember the OJ Simpson trials, you will recall that he was first tried for the crime of Murder and was acquitted because the glove did not fit. The murder victims' families later sued OJ for "wrongful death" and he lost millions of dollars. This is not an example of double jeopardy because one trial was for crimes and the other was a civil lawsuit. The constitution only applies to criminal cases.

However, lawyers who become legislatures have created laws, which are interpreted by other lawyers called District Attorneys, which can cause a person to be punished more than once for the same crime. These laws include "enhancement" statutes and "strikes" laws. Oftentimes the enhancement statutes are interpreted together with the strikes laws to really punish a person. Punishment twice for the same crime is not double jeopardy and does not offend the constitution.

Case in point, Mr. Leandro Andrade of California, was tried and convicted on two counts of shoplifting from K-mart some years ago. Shortly before Christmas, this father with a drug habit, went to K-Mart and stuffed several children's videos down his pants but was caught when leaving the store. He was given a written citation to appear in court. Two weeks later he attempted the same petit larceny at another K-mart and was again caught and cited.

Mr. Andrade had prior convictions for minor non-violent offenses and had served time behind bars for them. Most of his offenses were petty and involved his addiction to drugs.

What Mr. Andrade did not know and what most of California did not know, was that the new three strikes law would be applied to Andrade's case and Mr. Andrade would spend the rest of his life in prison. Ignorance of the law is no excuse, right? Who knew that two laws in different parts of the criminal code would come together for this result. District Attorneys, that's who.

You see, California had enhancement statutes, which say that if a person has had prior convictions and commits a new crime, the prior convictions are upgraded to felonies, and so are the new crimes. Thus, in the case of Mr. Andrade, who had had misdemeanors in his past and his newest crimes were also misdemeanors, the enhancement statutes upgraded his prior misdemeanors and his current ones to felony status.

Next, the District Attorney decided to apply the new Three Strikes Law. Under this law, once a person has a third felony conviction, the person will receive a minimum stay in prison of 25 years and a maximum stay of life. Do-gooder legislatures and angry parents created the Three Strikes Law which was intended to put away violent repeat offenders. By violent, the angry parents of dead children meant killers and rapists.

Nevertheless, Leandro Andrade, a Veteran of the Armed Forces, a father, and a non-violent drug addict suffered the Three Strikes Law because the District Attorney, Judge, and even the Supreme Court of the United States believed that although his offenses were not violent, they could have been. They declared that the act of shoplifting could have become violent because any crime shows a disregard for the common welfare and has the potential of becoming dangerous. Besides, an example should be made of Andrade to deter other recidivist from continuing to thumb their noses at the law.

Thus, Mr. Andrade's last two unsuccessful attempts at shoplifting constituted his third and forth felony which became his third and fourth strikes. Now you must be thinking that he received a minimum of 25 years and a maximum of life in prison. Not so.

The District Attorney and Judge declared that each count deserved its own sentence and that the sentences should run consecutively, not concurrently. Therefore, Andrade received a minimum of fifty years in prison and will not be eligible for parole until he is in his late 80s. His children will grow up, go to college, get married, have children of their own and will only get to visit their father occasionally for limited time periods at a prison. No grandpa Leo visiting on Holidays.

Several parents who lost children to murders were outraged when they learned that their efforts were being used to put away people like Andrade. It was a slap in the face to folks who had lost children to killers. They worked so hard for a law that would prevent killers and rapist from committing sixth, seventh, eight, and more crimes, and now the "justice" system was putting away a father who tried to steal less than $500.00 worth of children's videos shortly before Christmas.

This application of an otherwise well-intended law in California should tell us why California went bankrupt. California shelters and feeds petty offenders for the rest of their natural lives. Meanwhile, real murderers and rapists will be out of prison long before Mr. Andrade so long as their crimes were only the first or second offense.

The Constitution of the United States guarantees that we Americans shall not suffer "cruel and unusual" punishment. Some of the Supreme Court Justices had said in the past that even prison terms could be cruel and unusual if the time given was excessive when compared to the offense. However, the very same Justices who had said this in the past declared that Mr. Andrade's punishment fit his crime.

Noteworthy for you readers is that if you are accused of a crime you did not commit but you accept a plea bargain because you cannot afford to take a chance at trial, you will be a convicted criminal in the eyes of our "justice" system. Later on this conviction could be used against you when you are charged with another crime and your punishment can be much more severe.

And if you think that you will not be charged again with another crime in the future, remember that your prior crime is on the books and any police officer who thinks you are a suspicious person can access your record. If you committed a crime in the past, it is likely that you committed this one too, right?

Innocent people on death row have been exonerated after spending decades behind bars because new DNA evidence proved that they did not commit the crime.

Why were they found guilty? A combination of prior arrests and convictions, overzealous cops, tainted witnesses and evidence, overburdened public defenders, bored sleeping judges, apathetic juries, and mean-spirited or power hungry district attorneys contributed to the convictions.

The best thing to do is to never get a conviction, ever! This means you should plead not guilty if you are innocent and you should have an attorney go to the bat for you. If you have been arrested or convicted, at your earliest possible time, work to have the record sealed or expunged.


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