Popular Minimum-Term Law Hit as Harsh, Unfair

Kevin Sherbondy was the first person in the country classified as a career criminal under a federal statute that requires a minimum 15-year prison term.

Sherbondy, only 23 when he was convicted, was not, he said, a career criminal. But in the year 2001 when he is released, he said, he could be.

“How could I be a career criminal at 23?” asked Sherbondy, who is serving his term at the Lompoc Federal Prison. “I had no juvenile record and I was 19 when most of the crimes took place. But after 15 years in a place like this I could turn out to be the kind of person that law is really designed for.”

The revised federal statute, which went into effect in November, 1986, requires a minimum 15-year prison term for any person possessing a firearm who previously has been convicted of three violent crimes or three serious drug offenses. Because Sherbondy had been convicted twice for robbery and once for threatening a witness, he was prosecuted under the statute.

While career criminal statutes are popular among prosecutors and politicians, many criminologists oppose them for being too broadly written and inequitably applied.

Sherbondy, for example, will end up serving more time in prison than many murderers. While he must serve at least 15 years, a person convicted of first-degree murder in federal court will serve between 13 and 14 years in federal prison, officials said.

“These statutes are a kind of frantic, frenzied attempt to flail out at somebody,” said Gilbert Geis, professor emeritus of criminology at UC Irvine and author of “Man, Crime and Society.” “They ought to look at the person and the offense with some degree of sophistication, rather than imposing some kind of sweeping response to it.”

Even the judge who sentenced Sherbondy expressed reservations over imposing such a harsh penalty.

“I wouldn’t have sentenced you to 15 years if Congress had given me the discretion. . . , “ U.S. District Court Judge Harry Hupp told Sherbondy at his sentencing. “Because of his (Sherbondy’s) youth, because of his obvious intelligence, if it were up to me, I would think a shorter sentence would be appropriate. But the question here is Congress has told me the contrary . . . I’ve got a duty to follow the law.”

But many prosecutors defend the statute as a way to protect society by keeping criminals off the streets for long periods of time.

“We’re very comfortable with giving 15 years to someone who has committed three serious crimes,” said Carey Copeland, U.S. deputy associate attorney general. “In addition to these three crimes, these people are then found with a gun. So they’ve broken another law. Now you’ve got a four-time loser. . . . Now it’s time to take off the kid gloves and get serious.”

Kendra McNally, an assistant U.S. attorney who prosecuted Sherbondy, said because he had a history of violent, gun-related convictions, and had served time in state prison, he was a “prime candidate” for the federal statute.

But Sherbondy’s attorney, Dennis Riordan of San Francisco, who is appealing his client’s conviction, disagreed. “He’s no saint and there’s no reason you should like him. But I doubt he’s the type of criminal Congress intended when it established the statute. . . . I hate all the posturing involved. They’re trying to justify this as the equivalent of landing Al Capone.”

The case currently is being reviewed by the U.S. 9th Circuit Court of Appeals.

Career criminal statutes often are aimed at the “underclass” of American society, said Jeffrey Reiman, a professor at American University in Washington and author of “The Rich Get Richer and the Poor Get Prison.” Recent studies have shown that many corporate executives convicted of crimes “could be sentenced under multiple offender statutes,” Reiman said.

“Some of these crimes could be considered violent,” he said. “Take the corporation that pollutes a river that eventually causes cancer. Or the auto maker who, to save money, knowingly puts out defective cars where lives are lost. . . . The heads of these corporations rarely serve any jail time.”

A Texas career criminal statute received much attention in the 1970s after William Rummel was sentenced to life imprisonment for three nonviolent thefts--over a period of 10 years--totaling $229.11. Under Texas law, local prosecutors have the authority to charge anyone convicted of three felonies as a “habitual offender.” The charge carried a mandatory sentence of life imprisonment.

Rummel eventually was released--after serving eight years--when his conviction was overturned on the grounds that his original lawyer had failed to investigate potential witnesses before the trial.

About 450 people have been sentenced to a minimum of 15 years since the revised federal statute went into effect. Sherbondy’s case is unusual because he is white and middle class. The country’s prisons, said John Irwin, a sociology professor at San Francisco State University, are filled with “blacks and Chicanos who received equally long sentences for similar crimes.”

Irwin has a Ph.D. from UC Berkeley and is the author of “Prisons In Turmoil.” He is qualified to discuss career criminals not simply because of his education and publications. At one time he himself could have been labeled a career criminal. In the 1960s, Irwin served five years in Soledad State Prison for armed robbery.

Before he was sentenced to prison, he was arrested twice--but not convicted--of burglary.

“With a little bad luck, I could have been classified under one of these statutes,” he said. “If they’d given me another 10 years I’d have been 38 when I got out of prison, instead of 28. Prison starts having a more and more profound effect on you as years go by. You can become almost incapable of living outside. Another 10 years would have fantastically reduced my chances of making it.”

Sherbondy, a former college student who grew up by the beach in San Clemente and still has the athletic good looks of a beach volleyball star, said his troubles with the law stem from his involvement with cocaine. During a nine-month period in 1982, when he was 19, he was convicted of three crimes. First he was arrested for possession of 3/4 of an ounce of cocaine with the intent to sell. A month later he used a BB gun to rob a former cocaine customer and collect a $500 debt. And then he was arrested for attempting a “dealer rip-off.” He broke into the home of two men he wrongly assumed were drug dealers, threatened them with a pistol and attempted to rob them.

Life Style a Question

Sherbondy served three years in state prison. The following year Sherbondy was arrested and later convicted of threatening a witness who planned to testify against a friend--Sherbondy’s third violent crime.

Because of conflicting reports, it is difficult to determine what kind of life he was living at the time of his latest arrest.

There is the life described by Sherbondy, his employers and his teachers. He was a full-time student at Saddleback College in Mission Viejo and had just qualified for the Dean’s Honor List. He frequently spoke to youth groups about the dangers of drugs, and he was working two jobs to support himself.

Employer Vouches for Him

After his arrest, one of his employers wrote a letter to the judge saying Sherbondy had turned his life around and “seemed to have a new determination. . . . He was there for anyone who needed him, (going) out of his way on many occasions to help my family, our friends and even people he did not know.”

Then there is the life described by the Orange County Sheriff’s Department. Sherbondy had not changed and was still “into the cocaine world” when his gun was discovered, said Sgt. Otis Weichum, who coordinated the arrest. When Sherbondy was arrested authorities found a safe with an ounce of cocaine, scales and an “owe list”--a list of people who had purchased cocaine and owed money.

Arrest Timing Challenged

Sherbondy insisted the cocaine belonged to his former girlfriend and the “owe list” was in her handwriting. When he discovered she was dealing cocaine, he said, he threw her out of the house. Sherbondy never was charged for the cocaine found in the safe.

Riordan, Sherbondy’s lawyer, claims in his appeal that the Sheriff’s Department intentionally delayed his client’s arrest so that he would qualify for the career criminal statute.

Sheriff’s deputies could have arrested Sherbondy earlier, Riordan contends, but waited until the day the law went into effect so he would receive the longer prison term. Almost a week before Sherbondy was arrested deputies knew he had a gun at his house, according to court records. If Sherbondy had been arrested before the federal statute went into effect, his maximum sentence would have been two years.

Arrest Took Coordination

But Weichum of the Sheriff’s Department said he did not know the exact date the law changed, and the timing of the arrest had nothing to do with the federal statute. He needed almost a week, he said, to coordinate the arrest with Sherbondy’s probation officer and an agent from the U.S. Bureau of Alcohol, Tobacco and Firearms.

“If Sherbondy’s such a dangerous career criminal, and the police knew he had a gun, you’d think they’d want to arrest him as soon as possible,” Riordan said. “Why wait 72 hours? What if the gun disappeared, or, worse, if it was used in a crime?”

According to Sherbondy, the gun that caused him so much difficulty was an old “frontier-style” revolver that he never used and kept in an old-fashioned tie-down holster and cartridge belt over his bed post “like a mantelpiece.”

Real Bullets Fired

Weichum contended the gun was not simply a relic. “It’s a replica of an old Western revolver, but it’s not an antique,” he said. “It fires. It shoots. Bullets come out the end.”

During the first test-firing of the gun--a modern rendition of the 19th-Century Colt “Frontiersman”--it fired and then jammed, according to court records. It jammed, Sherbondy said, because he had never used it. It later was test fired and found operable, but in a previous appeal, one of Sherbondy’s attorneys stated that “since the gun jammed during the first test-firing, it is obvious that some repairs or maintenance was necessary in order to effectuate a second test-firing.”

“I was only 16 when I bought the gun,” Sherbondy said. “I bought it for 50 bucks at a garage sale and always kept it on my bedpost. I never hid it. I can’t believe it’s caused me so many problems.

“I’d be the first to admit I’ve made serious mistakes in the past,” he said. “But do I deserve more time in prison than a murderer?”