The Spitting Recidivist

At some point today, my column will appear on FindLaw. It discusses a recent case in which an HIV-positive defendant was sentenced to 35 years imprisonment for spitting at a police officer. In the column, my focus is on the counterfactual nature of one of the jury’s fact-findings: that the man’s spit was a “deadly weapon.” Because the CDC has not found evidence of even a single instance of HIV transmission through saliva in the 25 years since AIDS was identified, I argue, a jury should not be allowed to make a finding to the contrary. In this blog post, I wish to focus on a different aspect of the case: the defendant’s status as a recidivist, which contributed to the length of his sentence.

In the U.S., much turns on a defendant’s prior criminal record. “Three strikes” laws throughout the country, for example, mandate life imprisonment for people who are convicted of a particular class of crime (not by any means always violent or even especially serious) after having been convicted of two other crimes belonging to the same or a different class. The U.S. Supreme Court has upheld such laws, deferring judgment on the proportionality of a long or endless prison sentence to the majority of the people, as represented by the legislature.

What I wonder here is whether such recidivist laws give sufficient weight to the principal of closure in a criminal trial and sentencing. When a person has been convicted of shoplifting, for example, and served a sentence for that crime, there is something potentially troubling about reviving the old conviction as an element of a future offense. That is, having an old conviction be one of the facts that a jury must find to convict a defendant of a future offense smacks of double jeopardy or, in the words of the Fifth Amendment, putting a person “for the same offense … twice … in jeopardy of life or limb.” To convict and punish a person for committing a crime after having committed another crime (and been convicted of it), in other words, is to try and convict and punish a person a second time for an earlier offense for which he has already been tried and convicted and punished. It is also, contrary to our usual approach to criminal justice, to punish a person in part for who he is rather than only for what he has done.

Yet it is true that some people err once and thus seem worthier of our sympathy than others who repeatedly commit offenses and do not seem to learn from their prior punishments. If a person did not reform himself after having served time on two occasions for shoplifting or other crimes, then perhaps there is nothing to be done other than to confine the person for the rest of his life. He has proved unresponsive, after all, to the incentives of the criminal justice system.

The problem with this position, however, is that it assumes that the process of being tried and punished for an offense is ordinarily rehabilitative – that it takes a person who committed an offense and deters him from offending again. The reality, however, is that a one-time or occasional offender does not undergo a rehabilitative experience in prison. Prison concentrates society’s offenders (or at least those who are caught) in one place, exposes them to unspeakable violence that is so common as to form a staple of comedians’ routines, and releases them with a record that tends to make integration into society more difficult than it was before. We do little to ease that integration but instead take the attitude of “too bad; you shouldn’t have committed a crime; why should anyone want to hire you?” This attitude and its corollary inaction increase the odds of future offenses, after which we are somehow “shocked” to learn that ex-convicts have not changed their ways.

Incarceration, then, breeds more incarceration. And prison is such a dangerous and horrible place that if you have ever gone to a blood drive, you will find that having spent even a few days in jail will disqualify you from donating (on the theory that you are so likely to have been raped by someone infected with HIV that the blood supply is endangered more than it is enhanced by your donation). This observation brings us back to the crime for which our spitting defendant was convicted. Ironically (or perhaps just sadly), it is in prison, where he must spend the next 35 years, where even a short stay gives rise to a presumption of HIV infection. Yet our judges and prison guards are not charged with the deliberate use of a deadly weapon.

Posted by Sherry F. Colb