The Associated Press reported the other day that a Vermont man could possibly receive a life sentence for selling 75 gallons of stolen maple syrup. Now, I know that some people take their syrup pretty seriously, but I think even Mrs. Butterworth might be taken a little aback by this news.

Of course, then we learn that this gentleman has six prior felony convictions, and is eligible for a life sentence under the Vermont version of the "three strikes" law. Bear in mind that while this person is technically eligible for this enhanced sentence, it doesn't necessary mean he's going to get it.

Every time someone runs afoul of a three strikes law for something relatively "minor", the press has a field day with it. A little understanding of the purpose and actual application of this law is necessary in order to properly grasp why it exists and how it is used in reality.

New York has two different three strikes laws. One of them is mandatory, and the other is discretionary. A person is considered a mandatory persistent violent felony offender under the following circumstances:

o - The defendant must be currently charged with a "violent felony". The New York State penal law defines certain types of felonies as "violent" felonies. A violent felony carries different penalties than a non-violent felony of the same class. For example, a class D non-violent felony, such as Grand Larceny in the Third Degree, carries a maximum penalty of 2 1/3 - 7 years for a first time felony offender, with a minimum penalty of no jail. A class D violent felony, such as Assault in the Second Degree, carries a maximum penalty of 7 years for a first time felony offender, with a minimum of 2 years (under certain circumstances, the court can go lower, even giving no jail under very restricted circumstances).

o - The defendant must have been previously convicted and sentenced for two other violent felonies. The sentence on the first violent felony must have taken place before the commission of the second, and the sentence on the second must have taken place before the commission of the third. So, for example, if a defendant is arrested and charged with a violent felony, and prior to his conviction and sentence he commits another violent felony and is subsequently convicted of both, he is not yet a mandatory persistent violent felony offender.

o - Both of the prior violent felony convictions must have taken place within 10 years prior to the current violent felony offense. It's extremely important to note, however, that any time the defendant served in jail or prison is tolled, and does not count towards the 10 years. So, for example, if a defendant was convicted of a violent felony offense 20 years ago, served 5 years, then committed another violent felony offense immediately afterwards, served 10 years, and has been out of trouble for 5 years, he falls within the 10 year period because he was incarcerated for 15 of the last 20 years. A defendant shouldn't be rewarded for being in jail.

o - If all of the above criteria are met, the defendant is now a mandatory persistent violent felony offender. If he is convicted of another violent felony offense within the prescribed time period, he faces substantially enhanced penalties. For example, for a class D violent felony offense, the mandatory minimum penalty becomes 12 to life, the maximum being 25 to life.

The theory behind this sentencing scheme is that someone who is persistent in committing violent felonies, within a short time of each other, is a danger to society who needs lifetime supervision to ensure the safety of the public.

As I mentioned above, there is another way to violent New York's three strikes law, and that is as a discretionary persistent felony offender.

The criteria are as follows:

o - The defendant must be charged with any felony.

o - The defendant must have been previously charged and convicted of any other two felonies, with the same requirements about the sentence for each occurring before the commission of the next.

o - The sentences on both prior felonies must have been what are referred to as "upstate" sentences, meaning that the defendant must have been sentenced to prison time, as opposed to local jail time.

o - If all of the above criteria are met, the defendant is now a discretionary persistent felony offender. If convicted of another felony, the prosecutor has the option of seeking a persistent felony offender designation after a conviction, but it is not mandatory for the prosecutor to do this. If the prosecutor attempts to have the defendant determined a persistent felony offender, it is within the sentencing judge's discretion to deem the defendant a persistent felony offender, but again, it is not mandatory. If the prosecutor does seek this finding, and if the judge does agree, the defendant is then sentenced as a persistent felony offender. The mandatory minimum sentence on ANY felony becomes 15 to life, with a maximum sentence of 25 to life.

The theory behind this area of the sentencing law is that career criminals need lifetime supervision to keep them away from the rest of society. It is not something that is sought lightly, and is not used frequently. Personally, I have never sought to designate a defendant as a persistent felony offender, although I have used it as a bargaining chip during plea negotiations. The only case I can think of that I handled where I would have asked for it involved a woman who was charged with three counts of Grand Larceny in the Fourth Degree, class E felonies. She had stolen wallets out of three purses of three different women while shopping. After being arrested, she gave a "closeout" statement where she admitted to approximately 30 other thefts under the same circumstances (often detectives will allow a defendant to admit to additional similar crimes with the promise to not charge those crimes in order to close the cases and bring closure to the victims). This woman had an extremely lengthy rap sheet, stretching back 20 years. Since she was a teenager, she had been arrested approximately 40 times for pickpocketing, usually stealing wallets from women's purses. She had served upstate prison time on four prior occasions, and local jail time on most of the other arrests. She was never out of custody for more than a few months before being arrested again. In all likelihood, she had pickpocketed hundreds, if not thousands, of different women.

I told the defense attorney that if the defendant pled guilty, we would ask for the maximum sentence on each of the three current charges, to run consecutively. This would be a sentence of 6 to 12 years. In the alternative, if she were to go to trial and be convicted, we would seek persistent felony offender status. After some legal proceedings and after a hearing, the judge agreed to sentence the defendant to 4 to 8 years if she pled guilty to the indictment, and she took the deal.

I feel that if this woman had gone to trial and been convicted, I would have been justified in seeking persistent felony offender status. This is a person who, for her entire life, had contributed absolutely nothing to society except aggravation and anguish for her victims. She was a career criminal with absolutely no remorse and no hope for rehabilitation. She was a professional thief who cared not one whit for what her victims went through. Each of her hundreds or thousands of victims had to go through the process of cancelling credit cards, obtaining new identification cards, new social security cards, losing personal items, photos, etc. Not to mention whatever money they happened to have, and most importantly their sense of security and privacy which is extremely difficult to regain.

This is a woman who needs to be supervised for the rest of life for the sake of the rest of society. I have no doubt that when she is released, she will be back to her old ways, and will shortly thereafter become a guest of our correctional facilities once again.