Defendant "Not Likely to Emerge From … His [5-Year] Sentence … with a Thoughtful and Pacific Approach to His Fellow Man"

A new three-strikes sentencing opinion from a California court.

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I'm inclined to support properly crafted three strikes laws, especially for cases like this; and the court seems to be quite right that the trial judge's decision is unsound under the California three strikes law. On the other hand, I know that others think that such heavy recidivism enhancements are improper, and that five years would be a sound sentence for a crime such as this one, regardless of the defendant's past criminal history. (Still others might think that five years is too long, given that the victim managed to prevent being physically injured.)

What do you think? Here are the facts and some of the reasoning from People v. Mayfield, decided last week by the California Court of Appeal (in an opinion by Justice William Bedsworth, joined by Justices Richard Fybel and David Thompson):

The members of this panel have enjoyed long careers in the practice of law. We've seen enough to make it difficult to shock us. But not, as it turns out, impossible.

Respondent Tyson Theodore Mayfield has an extensive criminal record that includes multiple acts of violence against racial minorities. In this case, he threatened to make a pregnant African-American woman "drop" her unborn baby while she was waiting at a bus station. As a third-strike defendant, respondent was facing a mandatory prison sentence of 25 years to life. However, the trial court [Judge Roger B. Robbins] dismissed one of his prior strike convictions in the interest of justice under Penal Code section 1385 and sentenced him to five years in prison.

The district attorney contends the dismissal constitutes an abuse of discretion, and we agree. Completely. Everything about respondent's crime and his record shouts for application of the Three Strikes law….

Jasmine C. is an African-American woman who was eight months pregnant in September of 2018. That day, she was waiting at the Fullerton bus station for her boyfriend to pick her up when she heard respondent talking nearby. He was telling his two male companions how he hates "niggers" like Jasmine and "gets his kicks" by hurting pregnant black women. He also asked his cohorts if they wanted to see him go over to Jasmine and make her "drop her baby."

Jasmine became frightened. Her anxiety increased even more when respondent walked over to her and said, "I don't like pregnant niggers like you," "I'm going to make sure you drop your baby." Jasmine told respondent to stay away from her, but he continued to hurl racial epithets at her. Fearing for her safety, and the safety of her unborn baby, Jasmine took out her pepper spray and sprayed respondent with it.

In response, respondent grabbed Jasmine's backpack and left the scene momentarily. He then came running back toward her with his fists balled up and told her, "You're going to pay now, you nigger, I'm going to make sure you really drop this baby."

By now, Jasmine was so terrified her body was shaking uncontrollably. She somehow managed to run to a nearby café and call the police before respondent was able to carry out his threat. Officers arrived a short time later and took him into custody.

He was charged with committing a hate crime by threatening Jasmine for the purpose of violating her constitutional rights and with the present ability to commit a violent injury or cause actual physical injury. The complaint also alleged one count each of making a criminal threat and petty theft. And it included a sentence enhancement allegation that the criminal threat constituted a hate crime.

In addition, the complaint alleged two prior strike convictions, two prior serious felony convictions and two prior prison terms. Those six recidivist enhancements were based on respondent's convictions for assault with a deadly weapon in 2005 and mayhem in 2008….

All told, respondent was facing a mandatory sentence of 25 years to life in prison under the Three Strikes law, plus 13 years for the remaining enhancements. At his arraignment he pleaded not guilty, and over the course of the next several months, his preliminary hearing was continued several times to facilitate a plea bargain. During that period, respondent was unable to reach a plea agreement with the district attorney. However, the trial judge indicated he would be willing to strike one of respondent's prior strike convictions and sentence him as a second-strike offender to five years in prison if he pleaded guilty to the charges.

The prosecution vehemently opposed this proposed disposition. On March 15, 2019, it filed a lengthy sentencing brief arguing the interests of justice did not support the trial judge's indicated sentence. According to the brief, respondent was convicted of 18 offenses during the 20-year period leading up his current crimes in 2018[:] {1997: Driving under the influence; 2000: Driving with a suspended license; 2003: Battering a police office, resisting arrest and using illegal drugs; 2004: Petty theft and disorderly conduct; 2005: Assault with a deadly weapon; 2006: Failure to appear in court; 2007: Assault and battery; 2008: Mayhem and battery with serious bodily injury; 2016: Driving under the influence; 2017: Hate crime, assault, battery, and driving under the influence.} Eighteen—a remarkable number considering how much of those 20 years he spent in custody.

Most of these earlier convictions were for misdemeanors. However, in 2003, respondent was convicted of felony battery on a police officer, and in 2005, he suffered his first strike conviction for stabbing a man outside a liquor store. Respondent had no prior relationship with the man he stabbed. He just walked up to him, accused him of being a child rapist/murderer and slashed his face with a knife. Respondent received a two-year prison sentence for the attack. However, following his release from prison, he soon reoffended.

In 2006, respondent and a companion contacted a nonwhite couple at a gas station and asked them if they had any spare change. When the woman said no, respondent began making racist statements to her. Then he began punching the man in the face and did not relent until a bystander intervened. In the end, the man suffered a lacerated lip that required eight stitches and for a time hindered his ability to speak and eat. Respondent was convicted of battery with serious bodily injury and mayhem—his second strike conviction—and sentenced to nine years in prison.

That was in 2008. Following his release from prison, respondent was quickly convicted for drunk driving. And in 2017, one year before the instant case arose, he reoffended yet again. The victim in that case was a Turkish man with dark skin and dreadlocks. Respondent approached him outside a liquor store and asked for a light. When the man said he didn't smoke, respondent called him a "fucking nigger" and began pounding him with his fists. The incident led to respondent being convicted of a felony hate crime, but the trial court inexplicably reduced the conviction to a misdemeanor pursuant to section 17, subdivision (b) and sentenced him to a year in jail.

In addition to providing this information about respondent's prior cases, the prosecution's sentencing brief noted respondent has consistently violated the terms of his probation and parole throughout the years. The brief also reminded the court respondent presently had four misdemeanor cases pending against him that were unrelated to the present case. One of those cases was for punching a fellow inmate at the Orange County jail without provocation. Respondent boasted to jail authorities that he was not going to cease his violent behavior while in custody so long as he was forced to have contact with other inmates.

Given respondent's violent and racist conduct over the past two decades, including his actions in the present case, the prosecution's brief argued he was a threat to public safety and deserved to be incarcerated for an indeterminate life term pursuant to the Three Strikes law. Nevertheless, the trial judge stood by his indicated sentence of five years, which predictably prompted respondent to change his plea to guilty….

The trial judge exercised his discretion under section 1385, and struck respondent's 2005 strike conviction in the interest of justice for the following reasons: 1) the circumstances surrounding the current offense "do not indicate a greater degree of danger to society[,]" 2) "[t]here was no injury to any person[,]" 3) "[t]here was no weapon used[,]" 4) respondent's prior strike conviction is "14 years old and now remote in time," and 5) respondent was pleading guilty at an early stage of the proceedings.

The judge sentenced respondent to a prison term of five years, representing the requisite double the two-year midterm on the criminal threats count, plus one year for the hate crime enhancement attendant to that count. In so doing, the judge not only struck respondent's 2005 conviction for purposes of the Three Strikes law, he also struck all of the prior serious felony and prior prison term enhancements. Sentencing on the remaining two counts was stayed pending the completion of respondent's five-year term. So a defendant with 38 years' exposure who had been sentenced to 9 years for his previous felony, got 5 years for this one….

In reviewing this decision, we must keep in mind the Three Strikes law is designed to "punish repeat criminal offenders severely" and "drastically curtail a sentencing court's ability to reduce the severity of a sentence by eliminating alternatives to prison incarceration[.]" To that end, the law mandates the imposition of a 25-year-to-life prison sentence in cases—such as this one—where the defendant is convicted of a serious or violent felony and has previously been convicted of two such felonies. In other words, "If, after having suffered two qualifying felony convictions, an offender commits a third qualifying felony, the Three Strikes law presumes he or she is incorrigible and requires a life sentence.

That doesn't mean trial courts are powerless to deviate from the Three Strikes law. Under section 1385, the trial court is empowered to strike a prior strike conviction "in the furtherance of justice." However, that great power should only be used in "extraordinary" circumstances, when the ends of justice demand it….

What … we find considerable here is that racism and misanthropy are motives that are not likely to diminish or disappear. A defendant who boasts about his fights with other inmates and has a long and depressing history of random violence is not likely to emerge from whatever portion of five years his sentence requires him to serve with a thoughtful and pacific approach to his fellow man….

Respondent was also given a tremendous break in 2017 when the court reduced his felony hate crime to a misdemeanor. This enabled him to avoid the imposition of a lengthy prison sentence at that time. {The record does not reflect how in the world that happened.} Yet, before the dust settled on that case, he went out and committed another hate crime, against Jasmine. His unrelenting criminal behavior since suffering his first strike conviction in 2005 demonstrates him to be an unchanged man, with a stubborn character and no discernible prospects for reform….

All of this convinces us the trial court abused its discretion in offering him a reduced sentence…. The judgment is reversed and the matter is remanded to permit respondent to withdraw his guilty plea and plead anew.

NEXT: Today in Supreme Court History: June 30, 2014

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  1. Just out of curiosity, does the court think prisoners generally leave prison with a Thoughtful and Pacific Approach to His Fellow Man? If that’s the criterion, why not lock everyone up for life?

    And since you asked: five years seems about right to me.

    1. At least they should leave with some fear of going back? This guy seems utterly unteachable.

      1. “utterly unteachable” or “clearly suffering from mental illness”

        I’m just saying, anyone who acts like this asshat may need an actual psychiatric evaluation. It’s not impossible that he’s just a giant asshole, but I prefer to give people the benefit of the doubt.

        Obviously, he’s acting like a giant asshole, regardless, and I’m not saying he shouldn’t go to jail, but perhaps jailing him all those other times didn’t actually achieve anything. Perhaps a different line of action would be more useful for him.

        1. Bingo. The world should be protected from this guy until such time, if ever, as he undergoes a major change of attitude. But whether criminal incarceration is the likeliest avenue for accomplishing that is an open question.

      1. jj,
        Due to the Reason website formatting, your response is, unfortunately, meaningless. Are you saying ‘Bravo’ to Martin, for his point? Or to Leaf, for making an opposite point? Impossible to know.

        Don’t forget to include a short quote (or, as I did, to put the person’s username at the top), to make it clear to whom you’re responding.

  2. Prof, considering some of the analysis about usage of even non-lethal force for self-defense, I don’t fully understand how this is a crime unless he acted physically rather than just insult the woman:

    “Jasmine became frightened. Her anxiety increased even more when respondent walked over to her and said, “I don’t like pregnant niggers like you,” “I’m going to make sure you drop your baby.” Jasmine told respondent to stay away from her, but he continued to hurl racial epithets at her.”

    (Note for all commenters, asking this question does not imply endorsement of his ideology. I shouldn’t even have to say that, btw).

    1. I have my own definition of threat, as “imminently unavoidable harm”, and this incident matches that pretty damn well. She’s 8 months pregnant, hardly in a position to defend herself, and some abusive clown with two probably abusive, probably laughing, probably leering friends goes out of his way to close with her and threaten her? If he was within pepper spray distance and mouthing off like that, he deserved what he got and I’m glad she sprayed him; if she had pulled out a gun and shot him, that would be deserved too.

      As for the five years, I say he’s also the exact kind of clown who three strikes was meant for, and he should have gotten it years ago.

      1. I think somebody should start checking this judge’s prior cases; It sounds to me like he’s just hostile to the idea of 3 strikes, and is systematically undermining it by reducing charges.

        1. Yes, Brett, I know you think all of your ideas are brilliant. Did you really think that the prosecutor’s office doesn’t already know whether the judge does this?

          1. Looks like you think all your snide comments are brilliant.

            1. Looks like you are right anent Mr. Nieporent.

    2. I’m not keen on the whole concept of “hate crimes”, but his conduct certainly meets the standards for assault, though maybe not battery.

      Actually, probably battery, too, given the theft of the backpack, but prior to that at least assault.

    3. He walked over to her and theatened to attack her. She was actually assaulted and had an objectively reasonable fear of an impending battery. (You asked about a crime, that is already a crime committed by him against Jasmine.)

      As to the self-defense aspect, is anyone arguing that a person must wait until they are actually punched to use non-lethal force to repel a would-be attacker who has spoken and acted in a way that suggests they mean to follow-up on their threat?

      She used non-lethal force to extricate herself from the situation. This is an ideal instance of self-defense (Jasmine’s, not the criminal’s). If she had a gun, maybe he would be dead. (We all have our opinions about whether that would have been a good or bad outcome in this case, I am sure.)

    4. mad_kalak: Threats of violence are often criminal, e.g., Cal. Penal Code sec. 422 (under which Mayfield was charged here), which outlaws “willfully threaten[ing] to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement … is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety.”

      Of course, as with violence itself, threats may be permissible if made in lawful self-defense. But here of course there was no indication that Mayfield made the threat because he was reasonably afraid of an attack by the victim.

      1. Thank you for that answer. I’m not sure it meets that standard though, but a jury of his peers thought it did.

        1. It certainly meets the threshold considering that he stated his intent to cause her enough stress to enter premature labor and then he proceeded to do so by committing verbal and physical assault.

          1. You see, this is why I want an expert like the professor to answer. He didn’t commit physical assault, from my understanding of the law, as he didn’t touch her.

            Did the guy deserve to get maced? Sure, from a moral perspective, but maybe not from a legal one.

            I think you’re letting the ideology of the person in question color your legal judgement, such as it is.

            1. The charge does require him to commit physical assault. We can disagree over whether threats should be criminal, but in CA they definitely are, as Prof. Volokh showed.

              For the crime he was charged with, each element is clearly present. Willful – check. Threatening – check. Will result in death or great bodily injury – check. Intent to be taken as a threat – check. Unequivocal and unconditional – check. Immediate and specific – check. Conveying gravity of purpose and imminent prospect of execution – check. Causing reasonable sustained fear – check.

              1. Ugh. Does NOT require him to commit physical assault. Give me an edit button, Reason!

        2. Actually, a jury of his peers did not. He pleaded guilty. This case is remanded and he can now withdraw his guilty plea. However, I wouldn’t bet on the odd chance that he won’t be.

          1. Thanks for that clarification. I think you’re right.

    5. I don’t fully understand how this is a crime unless he acted physically rather than just insult the woman

      ? You think that going up to someone and saying, “I am going to harm you” isn’t a crime?

      1. Get your logic meter checked.

        I said, I don’t fully understand how this is a crime, not that I don’t think it’s a crime. It may well be, but I didn’t know the standard, eh?

        I don’t fully understand how an internal combustion engine works, but that doesn’t mean I don’t think it’s a car that will drive when I step on the gas.

        1. mad_kalak: As I mentioned in the comment above, specific threats of immediate criminal attack are crimes. They can also put the victim in reasonable fear of physical harm, which would authorize her to use nondeadly force (as she did here) and — if she is in reasonable fear of great bodily harm — even deadly force.

          1. Thanks again, but let me clarify why am not sure it meets that standard (now that I know the standard thanks to your comment).

            I don’t think the threat was immediate nor imminent. He never laid a hand on her, and his companions never approached. And what exactly does “I’m going to make you drop your baby” mean in this context when the baby is still in her body…are we to take that figuratively in the worst way possible that he says he wants to make her go into premature labor or the baby to die or what?

            Point is, I’ve seen a lot of cases over the years, debated here on this blog, where there was a larger and more imminent threat of violence, or where violence had already occurred, and there was not, how shall I put it, such handwaving of the specifics. Yes, calm detachment is not expected in the presence of an upraised knife, but that is not the situation we have here.

            1. mad_kalak: Let’s repeat the court’s statement of the facts:

              Jasmine C. is an African-American woman who was eight months pregnant in September of 2018. That day, she was waiting at the Fullerton bus station for her boyfriend to pick her up when she heard respondent talking nearby. He was telling his two male companions how he hates “niggers” like Jasmine and “gets his kicks” by hurting pregnant black women. He also asked his cohorts if they wanted to see him go over to Jasmine and make her “drop her baby.”

              Jasmine became frightened. Her anxiety increased even more when respondent walked over to her and said, “I don’t like pregnant niggers like you,” “I’m going to make sure you drop your baby.” Jasmine told respondent to stay away from her, but he continued to hurl racial epithets at her. Fearing for her safety, and the safety of her unborn baby, Jasmine took out her pepper spray and sprayed respondent with it.

              In response, respondent grabbed Jasmine’s backpack and left the scene momentarily. He then came running back toward her with his fists balled up and told her, “You’re going to pay now, you nigger, I’m going to make sure you really drop this baby.”

              This seems to me to easily qualify as a set of statements on Mayfield’s part that, “on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety.” I don’t see how any “handwaving” is required to so conclude.

              1. Okay, I demure. Though these were fair questions to ask.

                1. “are we to take that figuratively in the worst way possible that he says he wants to make her go into premature labor or the baby to die or what?”

                  Seriously? What else could he have possibly meant by asking his buddies if they wanted to see him make her “drop her baby” then approach her and tell her “I’m going to make sure you drop your baby”? There is no other reasonable interpretation of that phrase than that he intends to interfere with her pregnancy.

                  Yours were not fair questions, frankly. If you don’t understand that walking up to a stranger and (credibly) threatening them with physical harm is not a crime, maybe think twice before you spend much time out in public. Given there are “lots of case” debated on this blog, maybe you should give a specific example that you think conflicts with what everyone else sees here: a criminal act (though some might quibble over the appropriate punishment for that act).

  3. Personally I would say society could do without this guy and would prefer that SCOTUS had not eliminated execution as a possibility for non-homicide offenses. Not that California would actually do so regardless. But that would be my preferred outcome.

    1. I heard that the Golden State Killer plead guilty and got life in prison because they removed the (almost nonexistent) possibility of an execution.

      1. The problem I have with the Golden State Killer is if he is all there.
        He neither looks nor sounds like it, and while I don’t have an answer, if he’s as senile as I suspect he might be, then what?

        1. Then he (a) needs a guardian, and (b) is probably not a continuing threat.

  4. I know lawyers and judges don’t like to do math, but instead of the All or Nothing Three Strikes and you’re out, why not a simply multiplier?

    E.g.
    If you were convicted of a violent felony in the last 5 years, your sentence is multiplied by 2 for each prior conviction in the last 5 years.
    If you were convicted of a violent misdemeanor in the last 5 years, your sentence is multiplied by 2 for each prior conviction in the last 5 years.

    This would not affect the current conviction but would have perhaps a better effect on interrupting the criminal’s long string of violence.

  5. Bah, no edit button. What I meant to say:
    If you were convicted of a violent misdemeanor in the last 5 years, your sentence is multiplied by 1.5 for each prior conviction in the last 5 years.

  6. On the one hand, I think we have to be motivated more by what people actually do than how their words strike our emotional symbol system, and for this reason I am disinclined to support life imprisonment for a crime that consists only of making a verbal threat. I think we have to be guided by reason, not just by our emotions.

    At the same time, I also find myself disinclined to dismiss an existing conviction solely to give this guy a break. The three strikes sentence strikes me as excessive, but not so excessive I would jettison his past to avoid it.

    1. Even if you could describe this crime as “only making a verbal threat,” your argument is misplaced. It’s not life imprisonment for a crime that consists only of making a verbal threat. It’s life imprisonment (well, up to 38 years) for committing a crime that consists of making a verbal threat after having been convicted of a bunch of other violent crimes first.

    2. Yes.

      And I think that she being pregnant ought to be considered more than her being Black.

      1. I’m not sure what this means. The defendant chose the victim because she was black and the specific harm he threatened had to do with her pregnancy.

  7. I do not believe in free will, so I can separate moral culpability from the need to protect society. (In other words, I don’t think Hitler had any choice about being Hitler but that doesn’t mean the rest of the world doesn’t have the right to protect itself. A rattlesnake has no choice about being a rattlesnake either but that doesn’t mean I’m not going to shoot it if it’s getting ready to strike me.)

    This guy is going to spend the rest of his life terrorizing other people and he needs to be kept away from the rest of society until that changes. I’d give him a five year minimum with an indeterminate maximum and allow him to try to convince a parole board at a later date that he’s safe.

    1. Since you don’t believe in free will, I have to ask, if you have children, how do you go about disciplining them? And if you don’t have children, how would you discipline, say, an unruly teenager?

    2. I’ve never met anyone who did not believe in free will at all, that’s really interesting. Why do you make any decisions ever then?

      1. mad_kalak and Leaf’s Chauffeur, free will is an illusion, just like it’s an illusion that the sun revolves around the earth. We appear to be making choices, just as it appears that the sun is moving in the sky, but in both cases it’s essentially an optical illusion. If we had free will there would be no obesity, no drug addition, and no unhealthy relationships. The people doing those things all know they would be better off not doing them; they just lack the ability to stop. Or, to put it another way, you have the ability to do what you want, but you have no control over what it is that you want. What it is that you want has already been decided for you.

        That does not, however, mean that behavior never changes. A child who knows that if he eats that cookie before dinner he’ll get a time out/spanking/however kids are disciplined these days, will do whatever urge is the stronger. If the urge to eat the cookie is greater than the urge to avoid discipline, he’ll eat the cookie. If the urge to avoid discipline is greater than the urge to eat the cookie, he won’t. In the face of competing urges, you’re going to do whichever urge is the stronger. And that’s the benefit to disciplining children: It doesn’t give them free will, but it changes the balance of which urge is the stronger urge.

        Likewise, I almost never feel like getting out of bed when my alarm goes off at 5, but my urge to put food on my table and not lose my house to foreclosure is greater than my urge to sleep late.

        1. Krychek, interesting. You do raise a valid point; to do something only because you want and for no other reason, is the atom of free will. Most of our decisions are not purely that, rather they are (of course) influenced by the thousands of factors in our lives. And indeed, some things are so ingrained we are not actively choosing at all to do/abstain from them. But just because people can make choices does not mean they will not make bad ones, in fact, if people were only deciding based off of pure logic there would be no obesity but there would also be no choices. Do you see that? People are not acting based off of what urge is strongest, people are urged in all sorts of ways but they choose their actions out of their urges. If you really thought people had no choice about giving in to their urges you would never get upset at anyone, it’s never their fault.
          (Although I will grant a serious opinion could be people have no choice, except for liking/disliking the actions they do. But I do not think that is what you are saying.)

          1. “If you really thought people had no choice about giving in to their urges you would never get upset at anyone”.

            Getting upset at others serves a rational purpose, in so far as moral disapproval and social sanctions can influence behaviour.

            Beyond that, there’s not much point giving yourself sleepness nights over the behaviour of others.

          2. If you really thought people had no choice about giving in to their urges you would never get upset at anyone, it’s never their fault.

            That assumes that you believe Krychek has free will while everyone else doesn’t. But he also recognizes (in a world without free will), that he doesn’t have it either. Thus, he is subject to normal human emotions even if, on a deep philosophical level, he knows those emotions are irrational.

            In fact, I think we all agree that at least some of our wants and emotions are irrational and, also, to a significant extent beyond our control. Even assuming free will, people get angry over things they know they should not and they may even try not to, but still do. Whether we actually have free will or don’t, observations of irrational anger, disappointment, pleasure, and satisfaction would be the same. The no free will theory, I assume, takes as a given that everything boils down to physics and, so, our choices are, at bottom, determined by physics. (Nature versus nurture may be the whole ball game, and both are outside the control of the organism, hence, no free will.)

            (I don’t think the issue of free will is definitively resolved at all. I too have the illusion/certainty that I am in control of my choices and actions, but I don’t think we can know that it is actually either true or an illusion. We act as if we have free will, but, of course we do. I prefer to believe free will is an actual thing. My preference doesn’t make it true though.)

            1. “Thus, he is subject to normal human emotions even if, on a deep philosophical level, he knows those emotions are irrational.”

              With out free will there can be no reason either. Nothing is rational or irrational it simply is or isn’t.

              1. Nothing is rational or irrational

                I don’t think that is necessarily true. It seems possible to me that a person could not have free will, but also to know things and apply reason to them. Of course, the decision to apply reason or not is, in that hypothetical, not the individual’s decision. But the calculation is still being made and it either comports with logic or does not. Two plus two equals four regardless of free will.

                It would be irrational to expect water to flow uphill, even if you had no control over that expectation and were continually surprised by water flowing downhill. Likewise, it is entirely rational to expect water to flow downhill even if you have no free will to choose to expect otherwise.

                But you are right that, nonetheless, in a world of no free will, a thing “simply is or isn’t.” But that is a statement on morality, not rationality, I think.

              2. Matthew, you’re conflating two different concepts: whether objective reality exists, and whether human frailty allows us to perceive reality. Objective reality exists but most of us have blind spots that preclude us from seeing it.

                I think most people are either born liberal or born conservative. While it’s fun to argue politics, almost no one ever changes their fundamental assumptions. We all just believe what supports our assumptions and ignore what doesn’t.

            2. Nova, good point, and I agree things/emotions can be beyond our choice points. However, if Krychek truly believed no-one had free will the normal human emotion would be to not care what they did. I think that tends to show he does not deep down believe there is no free will. Though your point is better than my answer.

              1. Thanks, Leaf.

                And yours is a good point too, which I think it is probably dangerous for people to begin believing there is not free will (regardless of whether there actually is or isn’t). I also, based on my own experience and what other report of their own experience, have a hard time imagining free will doesn’t exist, that I didn’t just make a conscious choice to write this sentence. I don’t think that necessarily means there is free will, though, just because we have a subjective experience of free will. Basically, I think it is against human nature (in a non-moralistic sense) to believe free will does not exist. Everything in our being screams we are making choices, constantly and that those choices, though influenced by emotions, genetics, culture, etc., are not determined by all those forces beyond our control. And, yet, how does free will work? Does an amoeba have free will? A worm? A chicken? An orca? etc. At what point does free will enter the picture? At sentience? What level of sentience and how does that even work?

                I am still going to continue acting as if I and other people have free will, though. I can’t help believing it to be true.

      2. Free will and individual responsibility are the fundamental basis of western civilization, not to mention our system of justice and rights. No wonder you and Sam Harris don’t defend it adequately.

        1. mad_kalak, I’ve never heard the argument made that western civilization, justice, or rights depend on free will. I’m very interested to hear what one has to do with the other. I suspect it will be mostly hand waving, but I’m willing to be persuaded otherwise.

          But even if you are right, you’re committing the logical fallacy of argument from consequences: If free will doesn’t exist, then I don’t like the consequences, and so therefore free will must exist. Um, no. That would merely make my position unpleasant but not necessarily untrue.

          1. To start with, the justice system, such as it is, is predicated upon individual accountability. That’s why, for instance, children and the mentally ill are judged by different standards.

            Moreover, individuals are held to account and not the groups they belong too. Would you have no moral objection say, since free will doesn’t exist, to punishing those that haven’t committed a crime but who are of the same ethnic or racial group as the offender? This was routine in the not so remote past, btw. A sovereign sees X group as a threat to their rule and punishes the group. That we don’t do that is predicated up on our rights, and responsibilities, being individualistic in nature. This is a product of Judeo-Christian and Greek concepts layered over with Enlightenment thinking…i.e. Western Civ.

            The onus is upon someone who denies free will, which is a complete 180 of our common societal experience and our current civilizational system, to put up a defense about how if such a belief became common, that it wouldn’t lead to some serious negative consequences. At heart, denying free will is anti-liberal.

            1. “The onus is upon someone who denies free will . . . to put up a defense about how if such a belief became common, it wouldn’t lead to some serious negative consequences.”

              Nope. Whether free will exists or not is a question of fact, and whatever consequences follow are the consequences that follow. You don’t get to decide what is factual based on whether you like the result. And, as with any other question of fact, the burden of proof is on the person asserting that something exists to prove it. My disbelief in free will comes from the lack of any real good evidence for it; if you’ve got some, let’s hear it.

              It completely escapes me how lack of free will would justify racism. If your argument is that in the absence of free will, people get punished for things over which they have no real control, so why not open the floodgates and just punish people willy-nilly, then that’s the most egregious non-sequitur I’ve heard in a long time. As I said earlier, one of the important functions of disciplining children (and having a criminal justice system) is that having consequences shifts the balance of desires. Not having free will doesn’t mean that people don’t respond to positive and negative reinforcement. A fly or a grasshopper doesn’t have free will but that doesn’t mean they don’t know to avoid spiders.

              If you have some positive evidence that free will exists, let’s hear it. If the best you can do is to say that it must exist because it would be terrible if it doesn’t, well, that logical fallacy has a name.

              1. I don’t think you get how things work. The sum of human experience and the basis of our civilization is that people are possessed of free will. It’s on kooks like you and Sam Harris to show that it doesn’t exist, rather than on people like me to prove it to you in a positive sense.

                We cannot even define and show human consciousness for God’s sake. How do you measure a “thought”….just a bunch of neurons firing? Of course it’s not that. Music isn’t just the notes, it’s the spaces in between for example. You’ve set an impossibly high standard, on purpose I presume.

                1. Mad kalak, the burden of proof is never on the person disputing the existence of something. That’s basic logic 101. I have no duty to prove the negative.

                  If and when you have some actual evidence for free will, get back to me. Otherwise your emotional hand waving is just that

              2. And you’re smart enough put it together, if people aren’t responsible for their actions, we can judge on the basis of group identity not individual status when making policy. Thus, racism is perfectly logical as a result.

                1. if people aren’t responsible for their actions, we can judge on the basis of group identity not individual status when making policy. Thus, racism is perfectly logical as a result.

                  That’s silly. Whether people are responsible for their actions does not make it logical to be racist or to impose group punishment based on race (or religion or whatever other group characteristic). At best, it would make it illogical to punish anyone, not everyone. But, just as we dig canals to direct water pursuant to its nature tendencies and not according to its choice, observation shows that creating rules and punishments does affect what people do (whether that is because of free will or because of some deterministic choice mechanism).

                  As Krychek has said, your whole argument against the “no free will” position is that you don’t like the consequences. That is not a rational argument. Your supposition about what no free will entails misunderstands what that means.

                  Having said that, I do agree that if the idea that no free will exists became significant, there would be bad consequences to that belief. But that just might be because of how we are “programmed”, so to speak. People who believe they have free likely will act differently from people who don’t believe they have free will, at least in a significant percentage of cases. (And acting as if you don’t have free will presumably leads to things that are detrimental to society and the individual. This, frankly, creates strong evolutionary pressure in favor of sentient beings that believe in free will. But maybe we do actually have free will, despite what appears to me to be obvious evolutionary pressures to believe in free will. Not unlike the pretty obvious tendency to believe in the supernatural (or superstitions, or what have you) does not at all prove the supernatural exists. There are evolutionary reasons why people might tend to believe in god or superstitions independent of the truth of god or superstitions, such as group cohesion for religion and, perhaps, an over-application of our tendency to see patterns and purpose in everything, even when there isn’t (e.g., crops failed because the gods were angry instead of weather patterns beyond human control) or, alternatively, misattribute purpose for tendency (e.g., it is bad luck to walk under a ladder….well, maybe it just is more likely for non-superstitious reasons for something bad to happen when you do that.)

                  In short, the fact that a particular belief is widespread says very little about the truth-value of that belief. This applies to both religious beliefs and free will itself.

        2. When people argue about “free will” they usually mean the naive view that a person’s behaviour is caused by some sort of magical agent, that is independent of their genes and environment (and therefore, implicitly, beyond the laws of physics).

          Western civilization would get by just fine without that particular superstition.

          What sustains civilization is the right set of predictable incentives and deterrents.

          Criminal penalties deter crime. They should not (and do not) apply to small children and the mentally ill, because they do not fully understand the consequences of their actions, and so deference is ineffective.

          Basic property rights and the free market incentivise work, innovation, etc.

          Disciplining children deters misbehaviour at home and school.

          For adults, informal social sanctions and moral disapproval cover much of the rest.

          None of the above is incompatible with the idea that human behaviour is deterministic (contrary to the naive version of free will). To the contrary, it is all premised on a kind of determinism.

          In any case, we are not stuck with the naive (incompatibilist) concept of free will. The more sophisticated view (compatibilism) holds that ‘free will’ can be defined in a way that is consistent with the reality that human behaviour is determined by genes and environment, while preserving many (but not all) of our traditional notions about ‘free will’.

          I don’t really see what rights have to do with free will. Human rights are about treating people decently, and limiting what you can legitimately do to other. That would be desirable in any sort of universe.

          1. Iota,

            That is very well said. Yours are excellent points made clearly.

            1. Thanks! Bit of a hobby horse of mine, tbh.

      3. Why do you make any decisions ever then?

        Definitionally, he doesn’t. They’re made for him.

    3. “I’d give him a five year minimum with an indeterminate maximum and allow him to try to convince a parole board at a later date that he’s safe.”

      That seems much more reasonable to me.

      If there is any sort of justification for draconian three strikes laws it is to keep repeat offenders off the streets and protect the public. That’s certainly the angle that is usually emphasised by the defenders of three strikes.

      I take it that “25 to life” means that he needs to serve a minimum of 25 years, regardless of whether he remains a danger to society. If he serves the normal, proportionate sentence for an assault-without-battery, and can then convince a parole board that he has been rehabilitated and is safe to release, why keep him locked up?

      The empirical evidence is that most offenders age out of crime, so true life sentences can be reserved for a few rare serial killers and sociopaths (at least if public safety is supposed to be the objective).

  8. Let me bring an analogy to the defense of free speech here for this case. Speech that is about motherhood and apple pie doesn’t need defending, but controversial speech does.

    Likewise, if you believe that 3 strikes laws are to harsh and lock people away for non-violent crimes, then we need to be willing to say that this controversial case with this non-likable defendant is also someone who shouldn’t be locked away for life. Otherwise, if you think that there is no problem locking this guy up for life, then you’re only willing to defend speech about motherhood and apple pie.

    1. Are you saying that threats have to be taken as is and only the actual physical followup can be countered?

      Do victims have to wait until a fist hits their nose before they counter it, or are they allowed to assume the fist swinger has no intention of stopping his punch just short of their nose?

      What about someone shooting at you — do you have to wait for the bullet to miss, because golly gee he might just be a real good shot and only trying to add emphasis to his words with a loud verbal crack! which is harmless otherwise?

      Some threats are more than just words. This threat sure was, even allowing for her not knowing his background. Sometimes people need to just watch their mouth.

      1. Lotta strawmans you’re propping up, unrelated to the case at hand. Do you have a hay field being your house handy, because you must have needed the straw before making that comment.

        Say what you want about the case, but it wasn’t a violent felony crime by the usual standards by which we judge such things when we decide to lock someone up in prison for life, likewise with the drunk driving conviction and other various misdemeanors that were his priors.

        So, we have a case here that is difficult because the fellow is an unlikable racist. If you think that this guy should go to prison for life, AND you are against 3 strikes laws, than you only think motherhood and apple pie are the only free speech that needs protecting.

        1. No, ABCD et al did not advance, proffer, or prop up any men of straw. Why would you so asseverate?

          1. Thesaurus overuse can make you or break you, ya know. As for ABCD, he offered a strawman case about only waiting to shoot back when you’re shot at first. Such a situation is entirely non-comparable to the case in the OP.

            1. It is an exaggerated comparison, but still apt. You say it is not physical harm because he hadn’t physically harmed her, implying that she could not legally react until he had physically harmed her. I ask if a bullet whizzing by, and not physically harming you, prevents you from taking action in self-defense?

              Here is a man with two friends nearby making threats to an 8-months pregnant woman. How is that not an exaggerated analogy to shooting near you?

              I want to find where you draw the line. When does a non-physical threat become dangerous enough to allow self-defense?

              1. A bullet whizzing by is already lethal force, you’re not dead only due to bad aim.

                When does a non-physical threat become dangerous enough to allow self-defense? I dunno, I suspect virtually never, but I suppose if I tried hard enough I could cobble up some sort of franken-scenario where words are enough to kill someone over.

                1. Would that more of us consult Mr. Thesaurus. Why use the same words, over and over again, when the English language offers us a veritable salmagundi of sesquipedalian treasures?

                  1. When reading the Witcher series, likely due to the translation from Polish, I had to use a dictionary several times. I love learning new words in the appropriate context.

                2. A bullet whizzing by is already lethal force, you’re not dead only due to bad aim.

                  So if you know the person is an expert marksman and, so, you know it wasn’t bad aim (because he also told you, as in so many movies, that the first shot was a warning shot, but says, “the next one is going between your eyes”, you don’t have a right of self-defense in that situation? Because, up until now, it was only words and an action that did not physically harm you?

                  There is a reason self-defense is allowed before you actually get punched (or shot or whatever). There is also a reason that self-defense has to be calibrated to the nature of the threat. So can you shoot someone who merely threatens to punch you? Generally, I think not. But can you pepper spray them? Generally, I think so, assuming, as here, the threat to commit imminent harm is credible.

    2. This is an entry for the simile failblog.

    3. If someone claimed to oppose three strikes laws categorically, but said they didn’t have a problem with applying them here, I agree that you could make a good case that they were being hypocritical.

      The problem is that I don’t see any evidence that there are such people. Rather, there seem to be 1. People who are saying they don’t think the three strikes law should apply to this guy; and 2. People who say they are comfortable with three strikes laws in principle, and think that this guy is a textbook illustration of why we need them. (I’m in the latter camp.)

    4. The speech here literally concerned motherhood.

  9. With only reading the case description above, I’d say it was the correct decision; and at the same time, the “. . . is not likely to emerge from whatever portion of five years his sentence requires him to serve with a thoughtful and pacific approach to his fellow man. . . ,” line is absolutely and disgustingly gratuitous.

    Be judges of law not psychologists.

    1. I am in 100% agreement with apedad. They must be having a snowball fight in hell, because it just froze over.

    2. Can you elaborate on what you find objectionable about it? It seemed perfectly appropriate in context to me.

      1. Noscitur,
        I agree. I am unclear about the objection. Is it because the court used flowery language, and should have merely said, “We’re confident that a 5-year sentence will not be sufficient to dissuade this particular individual from engaging in future bad acts.”? Or is it because judges should not opine at all on future outcomes?

        If it’s the latter, then I completely disagree. I want judges to have discretion, so that sentences can be modified up or down, depending on the particular circumstances. This a-hole got a huge break on an earlier case (hell…he got multiple breaks on earlier cases…only 2 years for slashing someone’s face with a knife?!?!!!), and I see no reason why a judge should not have similar latitude to adjust upwards now.

        1. It’s also nothing more than dicta and does not impact the holding, so who cares. The judge is free to express moral condemnation of a person deserving of moral condemnation.

      2. It’s wrong because the judge is calling the guy a pice of shit with absolutely no chance for rehabilitation.

        As an OSI agent (so military and law enforcement) I was taught to treat everyone – including/especially suspects and prisoners with basic human dignity.

        Govt officials absolutely never can bring their personal emotions into their actions precisely because they’re acting as govt officials and not in the personal capacity.

        BTW when I say govt official I don’t mean politicians who obviously can say anything they want.

        1. It’s wrong because the judge is calling the guy a pice of shit with absolutely no chance for rehabilitation.

          (1) That sounds right.
          (2) The court said “not likely,” not “absolutely no chance.”
          (3) It’s literally the court’s job to make that assessment here.

  10. I support properly crafted three-strikes laws.

    If a person has been convicted and punished for two prior violent/serious felonies and cannot straighten up and fly right, then society has the right (and maybe even a duty) to lock the person away from the rest of society.

    Let’s face it, in this case, does anyone really think that when this guys gets out of prison in 2-5 years (under the original sentence), he’s not going to do something horrible to someone else? What do we say to that future victim? “Yeah, we knew this would happen, but the last crime wasn’t all that bad.”

    1. Precogs are still science fiction and we don’t punish for future crimes, but that’s essentially what you’re advocating. Statistics say you’re right but justice is not supposed to be about statistics.

      1. Assessing the likelihood that a defendant will continue committing crimes in the future, and crafting a sentence to minimize that risk, is one of the core principles of the criminal justice system. It’s true that there’s some uncertainty as to whether keeping someone locked up is truly necessary. But I’d rather put the burden of a mistaken judgment guy who can’t stop committing crimes than on his future victims.

      2. We don’t punish people for future crimes and I am not advocating that.

        We do take into account the likelihood of future bad acts when setting our sentencing policy, which is what’s at issue here.

  11. TIL that judges in California can engage in plea bargaining.

    What a state.

      1. “Today I Learned”.

  12. Hello. Is this Customer Service? I just want to note that, with the ever-increasing number of partisan, right-wing posts by Josh Blackman, I’ve found myself visiting VC less and less. I could make it through the occasional Bernstein screed in the old days, but the political balance has shifted too much for me at this point.

    1. This site will be devastated at the loss of your patronage. Good luck in your echo chamber, and check back in a month or so to see if the site survived your absence.

  13. Let’s see:

    This guy arguably commits robbery (theft of the backpack using intimidation/threat-of-harm) as well as the other charges…

    He’s a frequent-flier who obviously isn’t either scared or re-educated by his repeat trips to prison…

    Absent being shot by a victim (or gasp, the police!), the best thing that can happen to him is life in prison…. As a means of protecting law-abiding citizenry from a sociopathic menace.

  14. I believe judges should have wide latitude in sentencing prisoners and I don’t believe that three-strikes laws or mandatory minimums serve the interest of justice. However, for serious crimes the prosecution should be able to appeal a sentence they think is too lenient.

    Five years seems like a stiff sentence for screaming at a vulnerable woman and acting in a threatening manner. 25 years is insane.

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