159-Year Sentence Upheld but Called Absurd

A federal appeals court in San Francisco on Friday upheld a 159-year prison term for a mentally disturbed woman with no criminal history after one judge angrily concluded the nation’s rigid sentencing laws left the panel with no options but to affirm the “irrational, inhumane and absurd” sentence.

The 3-0 ruling by the U.S. 9th Circuit Court of Appeals came one year after Marion Hungerford, 52, of Billings, Mont., received the sentence for a string of robberies at Montana casinos and bars from April to July 2002.

The robberies, according to the 18-page opinion written by Judge Susan P. Garber, began when Hungerford and her male roommate, Dana Canfield, were both unemployed and decided to rob a convenience store to pay the rent.

“Marion said she was going to have to go on a crime spree,” Canfield testified at the trial. “And since she has problems walking and stuff, I decided that I would do it.”

A jury found Hungerford not guilty of that first robbery and one other, but authorities alleged they were only the start of a string of crimes.

She was convicted on one count of conspiracy, seven counts of robbery and seven counts of using a firearm because her accomplice was armed with a .22-caliber revolver.

In rejecting her appeal of four of the robbery and firearms convictions, the court found sufficient evidence that she knowingly took part in the holdups. “There is no evidence that [Hungerford] took any affirmative action to withdraw from the ongoing conspiracy,” the court said. “To the contrary, she continued to accept and spend the proceeds of all the robberies and worked purposefully to conceal the crimes.”

Though affirming Hungerford’s conviction, Judge Stephen Reinhardt decried the sentence handed down in the case as a “predictable byproduct of the cruel and unjust mandatory minimum sentence scheme adopted by Congress.”

Although she never touched a gun, Reinhardt noted, Hungerford was sentenced to five years on the first count of using a firearm and 25 years on each of the three other counts because the law gave the trial judge “no choice or discretion, except to impose the statutory mandatory sentences.”

“What the judge was not permitted to take into account when sentencing Hungerford should shock the conscience of anyone who believes that reasonable proportionality between a crime and the sentence is a necessary condition of fair sentencing,” Reinhardt wrote.

The judge, he said, was not allowed to consider numerous mitigating factors, including Hungerford’s “severe form of borderline personality disorder, which can alter one’s perception of reality in a manner similar to schizophrenia” and had led to numerous suicide attempts.

Nor, Reinhardt said, was the judge permitted to consider a psychiatrist’s testimony that Hungerford suffered from other mental problems, that she was financially desperate after her husband of 26 years left her, or that no one was injured in the robberies, which netted less than $10,000.

Most important, Reinhardt wrote, Hungerford’s “extremely limited role” in the crimes proved ultimately irrelevant to her sentence.

Indeed, he noted, it was her accomplice who brandished the gun and committed the robberies and yet he was sentenced to 32 years after pleading guilty.

“Not only is the sentence [for Hungerford] cruel, it is absurd,” he wrote. “The case at hand is precisely the type of case that should make Congress question what worthy ends are served by a cruel and inflexible sentencing scheme.”

Hungerford’s attorney could not be reached Friday. A Justice Department official had no comment on the ruling but said the department “is committed to the prevention of gun crime and the vigorous enforcement of our nation’s gun laws.”

greg.krikorian@latimes.com