The Heavy Gate

We all start in misdemeanors.  If you are going to get locked up over a misdemeanor, you are sent to jail.  Usually, you spend no more than 180 days there.  The most common sentences are for 30-60 days.  So you stand at counsel table and plea bargain with defense lawyers over these numbers.  You might say, “this DUI was particularly bad, I want 30 days jail in addition to the normal alcohol treatment programs.”  And the defense lawyer, invariably, wants a plea deal that will keep her client out of jail.  They ask you to imagine what jail would be like for their defendant.  Don’t do that to them, the lawyer will say.  And I think most young prosecutors actually do try to imagine what it would be like to do time in jail.  We take a jail tour during our new hire training.  I remember that it was eye-opening.  I remember being surprised by the building itself, as much as anything else.  It looked like a high school, complete with cinderblocks everywhere and bad murals on the walls.

Prosecutors, even in misdemeanors, have a lot of discretion.  So when you are standing there talking to the defense lawyer and thinking about what amount of jail (if any) is just, you have to imagine the impact of the jail on the defendant.  Will this jail term deter future misconduct and punish past misconduct?  In order to answer that question, you can’t avoid a more basic question.  A more primitive question.  How unpleasant will this be for the defendant?  The defendant might be a hardened criminal, with many years served in prison already.  In that case, the jail term is going to be a walk in the park, then it might not be a deterrent at all, nor is it much of a punishment.  On the other hand, a suburban kid with no record might be understandably terrified of jail.  This person might be extremely deterred by the thought of even a short jail term.  This hypothetical delicate suburbanite might suffer immensely in jail, a truly extreme punishment.  So we stand there and put ourselves in the shoes of defendants, imagining what it would be like for them.

By the time you get to felonies, all this imagining is out the window.  In California, a plain vanilla felony will get you low, middle, or high term.  That’s 16 months, 2 years, or 3 years.  If you have a serious or violent felony prior, this is doubled.  Other crimes in your past can make the sentence even longer.  “Use a Gun and You’re Done” was the actual name of a law designed to extend sentences for people who use guns to commit felonies.  And the title is 100% true.  If you use a gun and cause great bodily injury, you can get 25 years to life, even if the underlying felony had a high term of 3 years.  Speaking for myself, I just can’t imagine what it would be like to face several years in prison, much less actually serve that time.

That’s why I got so much out Oscar Wilde’s The Ballad of Reading Gaol.  Wilde got 2 years in custody for his participation in a homosexual prostitution ring.  In other words, mid-term on a vanilla California felony.  Many thought it was an unfair sentence at the time, and today much of what Wilde did is legal.  He says,

I know not whether Law be right,
Or whether Laws be wrong;
All that we know who lie in gaol
Is that the wall is strong;
And that each day is like a year
A year whose days are long.

It’s hard not to read the poem without thinking that Wilde should not have been there in the first place.  And since the poem is written in the first person, with Wilde talking directly to you, it is difficult not to confront him and his experience.  In other words, it’s impossible not to think about what it would have been like for him during his two years.

This too I know – and wise it were
If each could know the same –
That every prison that men build
Is built with bricks of shame,
And bound with bars lest Christ should see
How men their brothers maim.

Wilde cannot be written off as evil, or stupid, or as a different type of person, the type that goes to prison.  You can’t say, “I’m not that type” or “that could never happen to me.”  To the contrary, Wilde is almost certainly more intelligent and sensitive than his reader.  His art proves it.  And Wilde was an intellectual, a literary celebrity.  Prison is not exactly an occupational risk for literary types.

The vilest deeds like poison weeds,
Bloom well in prison-air;
It is only what is good in Man
That wastes and withers there:
Pale Anguish keeps the heavy gate,
And the Warder is Despair.

Wilde died from an ear infection that he contracted in custody.  I’d like to return to his poem in a few years, and try to remember it’s lesson.  That prison is a cruel and hopeless place.  And I’d like to let him help me imagine what it is really like to serve those years.  Something I can never fully do, but that his writing my help me get better at.


Equal justice under law is not just an empty motto for the prosecutors I’ve met.  That’s why, even though we might consider the individual impact of an offer, most of the time we strive for uniformity in plea bargaining.  Many offices use an “offer sheet” with standard offers for common crimes.  This sheet my even be detailed enough to account for the individual circumstances of some offenses.  For example, it might contain a standard offer for a first time DUI, as well as a standard offer for a second and third time DUI, each a little more serious than the last.

Spoiler alert: it’s pronounced like “jail.”

A Few Seconds Becomes Two Years

I made an error: instead of giving a jury instruction for Penal Code section 12022.7(b), I mistakenly allowed the court to give an instruction for Penal Code section 12022.7(a).  Since (b) carries a 5 year sentence, and (a) only carries a 3 year sentence, this mistake means that the defendant will be released 2 years early.  That’s 2 extra years on the street.  Two years that he must treasure, but that the victims must fear.  All because the judge and I missed something: a moment that probably took 10 seconds out of a week-long trial.  There are procedures I could put in place to avoid making this kind of error.  I should more carefully compare the instructions given with the instructions outlined in my trial notes.  That would work, and that’s a lesson that I need to take from this.  But it amazes me how such a short error, buried in so much other work, could have such a large effect on the defendant and victims.  That’s one aspect of the job that continually surprises me.  So much attention to detail is required and so little time for detail is allowed.

The error was discovered at sentencing.  The victim’s family made their statements, as did the defendant. The defendant’s sister gave a heartfelt statement.  The defendant was sentenced to the maximum, after the two years was deducted by the court.  The defendant’s sister came up to me and said, “did you laugh when you said you were going to give my brother the maximum?”  I did not answer.  I just walked out of the court and down the hall towards my office.  I could hear the defendant’s family and the victim’s family arguing in the hallway after the sentencing.  I didn’t want to make the drama worse, since clearly the defendant’s family wanted to argue with me as well, but walking down the hallway still felt a little bit like running away.  So I stopped, turned around, and collected the victim’s family.  We used the staff elevator to go to the ground floor, where I could arrange a sheriff to escort them to their car.  On the way, the victim’s family said that they felt the sentence imposed was too short, and that he would be out in a minute.  I wanted them to have closure.  I wanted them to feel avenged, in a way.  I was disappointed that they did not have that.  And I was disappointed in myself for the 2 year error.

Jarvious Cotton is a Murderer

“Today, Jarvious Cotton cannot vote because he, like so many black men in the United States, has been labeled a felon and is currently on parole.”  (Michelle Alexander, The New Jim Crow (2010) at p. 1.)  That is a frustrating and misleading way to start a frustrating and misleading book.  And the worst part isn’t the unnecessary use of the passive voice (Cotton “has been labeled”), and it isn’t the fact that a parolee was denied voting rights.  I hadn’t even thought about the latter much, before picking up this book.  No, it’s Alexander’s characterization of Cotton as having lost his voting rights when someone “labeled” him a felon.

Cotton was not labeled a felon by the establishment, “The Man,” a racist cop, or some other bogeyman.  He committed a felony.  No one did anything to him.  He did it to himself.  He broke the rules and got caught.  Alexander tries to take the focus off Cotton, as if losing his voting rights happened to him in the same way that you happen to get rained on, or in the same way that you happen to catch a cold.  That is just not the case, and it’s a dishonest way to start your book.

What Jarvious Cotton Did to Lose His Voting Rights.  

On March 12, 1982, Robert Irby was with some friends outside the city auditorium in Natchez, Mississippi.  Irby was a popular 17-year-old student football star and the son of a prominent banker.  The Natchez Pilgrimage tableaux was being held.  Irby and his friends were approached by Jarvious Cotton and Terry Johnson.  The two men were friends. “When we was hanging together,” Johnson said, “I put my education with his street knowledge.” Johnson was 15 at the time. He said he was high on marijuana and codeine.

Cotton and Johnson brandished a gun and demanded money.  The men got about $21 from Irby and his friends, and turned to run away.  Irby ran after them.  Cotton turned around and shot Irby dead. According to Johnson, Cotton fired three times. The first two shots hit Irby in the legs. The fatal shot hit Irby below the ear. Cotton said, “He wants to be a hero. There’s another dead soldier.”

Cotton and Johnson fled to a car. The getaway driver was a third man, Anthony Gerald Jackson, who drove them out of state to Louisiana.

Jarvious Cotton’s mother Audrey had ten children. Jarvious was the fourth. He used to run away constantly between the ages of 7-12. He had his first brush with the law at age 17, when he was convicted of burglary. After Cotton killed Irby, he was later caught and held awaiting trial at the Adams County Correctional Center, which is now a private prison.  His mother helped him escape from his cell. He fled Mississippi, but she remained and was later convicted herself, as an accessory to his crime.

He remained a fugitive for five years until he was apprehended almost by accident in New York.  Specifically, he was arrested for marijuana possession¹ in a New York subway.  Officers discovered that he was wanted for murder in Mississippi.

Once Jarvious Cotton was identified as a wanted murderer, Mississippi began proceedings to extradite him.  It may surprise you to learn that the Legal Aid Society of Brooklyn fought on behalf of Cotton to prevent his extradition.  They fought extradition for almost a year before the New York Court of Appeals unanimously held that Cotton must be returned to Mississippi.  Some sources say he was convicted of murder by a jury of his peers. Others say he pled guilty in exchange for a life sentence with the possibility of parole.

Alexander Used Jarvious Cotton to Mislead You.

Cotton lost his right to vote because he killed a teenager.  He did not lose his right to vote because the system “labeled” him a felon.  The New Yorker has the same problem with Alexander’s opening.  The Boston Review sums up my feelings nicely.

“Alexander’s passive construction—Cotton “has been labeled a felon”—suggests that he had no choice in the matter. The compelling arguments against felon disenfranchisement would lose none of their force if Alexander were to acknowledge Cotton’s crime, but she never does.”

Alexander’s language has actually misled people.  Even though we know Cotton was convicted of murder, college students who read this book do not.  For example, students at Cal. State Long Beach were asked to read the introduction and write about it on a message board.  One of them said, “Lastly is Jarvious who is also denied the right to vote because he is on parole for being charged with a drug conviction.”  Nope, he killed a teenager.

If an author cannot be trusted in small things, she probably cannot be trusted in large things either.  If Alexander was willing to try to pass of Cotton as a victim of the system rather than a the worst kind of criminal, what other things is she trying to pass off?  Alexander is a loud voice for sentencing reform.  She should not discredit the arguments of the movement by deceiving her audience about the facts.

Notes and Annotations

Why can’t felons vote? There are good reasons for this rule. In a nutshell, if you aren’t willing to follow the law, you shouldn’t get to make the law for everyone else.

Cotton will vote when he’s off parole: Jarvious Cotton served his time for murder and was released on parole to Adams County Mississippi.  Mississippi denies voting rights to parolees.  But Cotton will regain his voting rights once he completes his term of parole.

California has the same rule as Mississippi: a felon is stripped of his right to vote while she is incarcerated and on parole.  But when the term of parole is complete, her voting rights are returned. People incarcerated in county jail, which includes felons, can vote.

Here’s a newspaper article discussing the case.

Here’s a thoughtful perspective on Alexander’s use of Jarvious Cotton in her argument that the criminal justice system has created a racial case.  Jarvious Cotton chose to commit a crime, whereas slaves and southern blacks during Jim Crow did not choose to be victimized and oppressed.

You can read court opinions about Cotton’s extradition that include the facts of his case. (See People ex rel. Neufeld on Behalf of Cotton v. Commissioner of New York City Dept. of Correction (1988) 71 N.Y. 2d 881 [describing Cotton as an accessory].)

After his conviction, Cotton became a jailhouse lawyer. He sued Mississippi prison officials asking for money to compensate him for having to prove his legal mail did not contain drugs. He sued over a leaky roof, and over the decision to deny him parole. He brought so many bogus suits that the Fifth Circuit barred him from filing more. You can read a detailed account of his life after conviction here.

¹To me, the fact that Cotton was apprehended for possession of marijuana is the most ironic part of his story.  Alexander argues that enforcement of drug laws should be ended, because they are used to create a new racial caste system.  Jarvious Cotton shows that real life does not fit this argument.  Or we can go farther; Alexander’s own examples don’t fit this argument.  Because in Jarvious Cotton’s case, enforcement of a minor drug law led to the apprehension of a murderer.  We could speculate that since Cotton was apprehended on the subway, that he may have been arrested as part of “stop and frisk” enforcement, or broken windows policing.  In other words, the enforcement practices that Alexander criticizes successfully identified and arrested a murderer, an extremely positive result.  And she still turned around and used Cotton as an example in her book, secure in the knowledge that only a tiny number of people would ever care enough to dig deeper.

Pirate Sword Letter Opener

A guy walks into a drug store and puts a bunch of items in his cart, walks towards the door without paying, and is intercepted by store employees.  Instead of stopping, he abandons the cart, pulls out a knife, flashes it at the employees, and runs out the door with a few miscellaneous items.  This robbery was caught on video.  There was no mystery about who the perpetrator was.  The video even showed the defendant pulling out the knife.  I say knife, but what I really mean is letter opener in the shape of a pirate sword.

Everyone knows that drug stores have security cameras, but he tried to steal the items anyway.  The crime was probably not a spur-of-the-moment thing, because the defendant did enough planning to come armed with the pirate sword.  He must have thought that there was a good chance he would get away with it.

Based on the defendant’s criminal history, it seemed pretty clear that he intended to sell the items he was stealing, rather than use them himself.  I’ve seen people selling these items by metro stops or in other public locations.  Based on his history of drug arrests, my guess is that the defendant then intended to use the money to buy crack.

The defendant had done this before.  He had gone to a market in a Latino area and tried to walk out with items.  It would have been a shoplifting crime – like this crime – but he used force to escape.  Use of force to escape with stolen property is the same as using force to take property.  In other words, it’s robbery.  But people don’t realize that.  They think that what starts as a shoplift stays a shoplift.  This defendant should have known better.  But he still wanted to steal so badly (loved crack so much?) that he tried to do what he did.

With that robbery in his past, the defendant was exposed to a lot of prison time.  He was on probation as well.  Altogether, he was looking at 17 years.  I just can’t wrap my head around what would motivate someone to risk 17 years of incarceration for a few bucks worth of shampoo and other items.  Either they believe the risk is extremely low – infinitesimally low, or the reward is extremely high.  Here, the defendant knew the risk was not tiny, because he had already been convicted of the same thing once.  The next question to ask would be, is the reward for this shoplift extremely high.  For example, is there a chance of making thousands of dollars that would justify such a dangerous risk of lengthy prison time.  The answer is clearly no.  There’s nothing in a drug store worth so much.  The only answer that makes sense to me is that this defendant loved drugs so much, that the reward of continued access to drugs was that high value reward that we’ve been considering.  It may not make sense to those of us that are not addicted to drugs, but maybe this guy loved drugs so much that he would be willing to risk 17 years of his prison.  That’s how great drugs are.  Or that’s how fully he was addicted.

There’s a lot of rhetoric and a lot of politics around the drug issue.  A lot of people talk about the value of leaving authentic lives; others talk about the value of expanding your mind.  For a lot of my life, I didn’t really see the harm in drugs, as long as you kept your habit under control.  But a case like this makes a stronger argument.  Drugs take over your life, to the exclusion of all else, and you become so driven to get those drugs that you take risks that defy all logic to the non-addicted.  Drugs mess your life up because you want them so badly.

The judge did not give the defendant the maximum.  But he gave him enough to teach me a lesson: keep your life in balance.

Next Time, Use A Knife

I recently tried a case in which a defendant really screwed himself over by using a gun.  He broke up with his girlfriend and confronted her when she brought another man to pick up her stuff from his house.  The boyfriend shot several times at the man, causing him serious injury.  Because he used a gun in his fit of rage, instead of using a knife, he is now facing life in prison.  By contrast, if he had used a knife, his sentence would have been increased by four years: one for the knife and three for the injury.  Four years versus life is a big difference.

California has a “use a gun and you’re done” law: Penal Code § 12022.53. If you use a gun during a serious felony, your sentence is extended by an additional 10 years. If you fire the gun, your sentence is extended by an additional 20 years. And if you cause great bodily injury to a person as a result of firing a gun, then your sentence is extended by 25 years to life. These extensions are in addition to your punishment to the crime itself. In fact, the punishment you face for using a gun often far exceeds the punishment for the underlying crime.

Penal Code § 12022.53 was enacted in 1997 to substantially increase the penalties for using a firearm in the commission of certain felonies. The Legislature found “that substantially longer prison sentences must be imposed on felons who use firearms in the commission of their crimes, in order to protect our citizens and deter violent crime.”  The Los Angeles Times described the bill as “supported by virtually everyone outside the far left.”  The author said, “With the 10–20–life provisions of [Penal Code § 12022.53], we are sending another clear message: If you use a gun to commit a crime, you’re going to jail, and you’re staying there.”

The judge may not strike this enhancement.  In other words, even if the judge feels that the additional punishment is unjust, he cannot stop the additional time from being imposed.  Moreover a judge cannot avoid the additional punishment by simply granting probation, as he can in other cases.  Finally, the enhancement prevents defendants from receiving the same amount of jail credits that others may get: sentence credits are limited to 15% of the total term.

The limitations on the judge may not bind the prosecution, however.  Penal Code § 1009 allows the prosecution to amend the information “at any stage of the proceedings.”  If there is no prejudice, an amendment of the information for defect or insufficiency may be granted up to and including the close of the trial.  (People v. Goolsby (2015) 62 Cal.4th 360, 367-368 [amendment upon submission of the case to the jury].)  Indeed, courts have even allowed amendment after a jury verdict but before sentencing.  (See People v. Valladoli (1996) 13 Cal.4th 590 [amendment to correct clerical error by adding prior convictions].)  Of course, the prosecution could amend the complaint at any point during proceedings.  They also have the discretion not to charge the enhancement in the first place.  Enhancements like this one underline an important point: the prosecution often has more discretion to show mercy to defendants than a judge.
Some may agree with this law, and some may not.  As the Roman playwright Terence says in his “The Self-Tormentor”:
Ius summum saepe summa est malitia.
Extreme law is often extreme injustice.
(Act IV, Scene 5, Line 48.)
I find the title of the play appropriate, since we are all responsible for ourselves, andthose who violate the law open themselves up to this extreme punishment.  Whether a defendant actually deserves a break is another question.  The Legislature, which speaks for the people, clearly intended to throw the book at gun-toting criminals.  Prosecutors are part of the executive branch, and should carry out the legislature’s intent. I think that if more people knew about this law, they would be less likely to use a gun in the first place.  Maybe the most “merciful” thing for both victim and defendants is to get the word out, and prevent the crime in the first place.

Longer Sentences Reduce Recidivism

At a courthouse in Seattle, Washington, defendants who plead guilty prior to trial are randomly assigned to a different sentencing judges.  These judges, as you would expect, have a range of ideas about sentencing.  Some are more likely to hand down prison time than others.  The luck of the draw can have a great effect on a defendant, who is understandably hoping for a lenient judge.  Moving from the most lenient judge to the harshest judge could double an offender’s sentence length.

This sentencing scheme is also fertile ground for researchers who want to study the effect of prison sentence length on recidivism.  Michael Roach and Max Schanzenbach, professors of economics and law respectively, studied the sentencing variations in this courthouse.  They found that “one-month extra prison sentence reduces the rate of recidivism by about one percentage point, with possibly larger effects for those with limited criminal histories.”

The authors caution that “extra prison time does not yield a statistically significant reduction in recidivism for offenders with more significant criminal histories.  They also note that they only studied relatively short sentences.  “The average sentence length in the data is nine months, and the median sentence is three months.  Thus, the results pertain only to low-level offenders mostly convicted of non-violent property crimes.”

Even with these caveats, this study has broad application for prosecutors and judges at sentencing.  Reducing recidivism is one of the chief goals of the criminal justice system.  This study seems to provide a clear way to do it.  Many defense attorneys believe that it is in the best interest of their client to obtain the shortest possible period of incarceration.  This study proves that belief wrong in many cases.  Judges should take note that they can rehabilitate a prisoner and reduce his recidivism rate simply by giving him more prison time at the outset.  This approach is backed up by more than slogans like “tough love.”  It’s now backed up by hard data.  And in addition to its rehabilitative benefit, additional jail time also accomplishes the purposes of general deterrence and rehabilitation.

I hope the criminal justice system takes note of this data.  Maybe we can improve the way we protect our communities while at the same time rehabilitating defendants.


  1. of or relating to Byzantium, the Byzantine Empire, or the Eastern Orthodox Church.
  2. (of a system or situation) excessively complicated, typically involving a great deal of administrative detail.
    “Byzantine insurance regulations”

I’m trying to get a handle on felony sentencing and discovering that complicated is not even close to an adequate description.  This makes it hard for me to learn, but also creates a larger societal problem.  Our criminal laws are supposed to reflect or morality.  That’s why everyone is presumed to know the law – we all know the difference between right and wrong.  But when the law has got to the point where it is in California today, no intellectually honest person could make the claim that the law reflects our morality.  Our law doesn’t even reflect a coherent system.  It resembles a hodgepodge of systems layered on top of each other.  When the law is this complex, those who know it well will be able to use its intricacies and idiosyncrasies to their own ends.  That’s why I’m taking the time to learn it.  I want to use it to protect the community and stand up for crime victims.  But what would stop an unethical person from using it for unethical ends?

My first impression of felony sentencing is that it is time for dramatic reform.  Where are the efforts to simplify and modernize these crucial laws?  We haven’t given up on this have we?