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Shawn Vestal: Shoplifting sentence puts eye on prosecutors

Justice is blind, they say. And sometimes it’s dumb.

Take the case of the $163 shoplifter and the 799-day prosecution. The overworked Spokane County Prosecutor’s Office overcharged a young woman and then appealed when a judge didn’t throw her in our overcrowded jail.

The woman, Kristin Bell, spent a night in jail – in addition to the larger punishments that came with a felony conviction, such as giving up her dream to be a school teacher, losing the right to vote, etc. When Judge Tari Eitzen decided that was enough and gave Bell 30 hours of community service – instead of three to nine months in jail – the overworked prosecutor’s office appealed. The state Court of Appeals sent the case back to Eitzen for a fuller justification for giving Bell a sentence below the state’s standard sentencing range.

On March 10, Eitzen stuck to her original sentence, and carefully justified it in the legal terms the appeals court sought. In the process, she made a smart case that this has been, top to bottom, a dumb case.

“The decision is not difficult,” she said, according to a court transcript. “What bothers me about this case is how the system went awry.”

The initial dumbness belongs to Bell, of course. She admits it, and she’s paid a high price. As an Eastern Washington University student in 2008, she stuffed a canvas bag with items from the Ben Franklin in Cheney and walked out.

“I am sorry,” she told Eitzen. “It makes me feel so pathetic thinking about how I ruined my own chances of a successful teaching career that I once dreamed of for so long. Because of this one insurmountable mistake, and not just for the loss of a longtime job, I have come face to face with the hardships of trying to find another with a felony on my record. … My hope is you understand that nothing is more of a punishment and nothing would impact me more than what I have already lost and how difficult life will continue to be just being a convicted felon.”

I’m no lawyer, but by any normal person’s definition, what Bell did was shoplift. Under the law, that’s misdemeanor theft – up until the point there is some “use or threatened use of immediate force, violence or fear of injury,” at which point it becomes robbery.

On the day of Bell’s mistake, a store manager followed her and confronted her in the parking lot, where the two bumped into each other.

It was a costly, costly bump.

The difference between theft and robbery in this case is the difference between a gross misdemeanor and a Class B felony. Between relatively minor and relatively major. Between being a voter and being disenfranchised. Between a judge having discretion to sentence you to anything from a year in jail to community service and a sentencing guideline that seeks three to nine months in jail on a first offense.

The contact in this case was minor, and may have been instigated in part by the store manager. None of this is to excuse Bell or to ignore the fact that prosecutors may have had a strictly legal case – it’s only to point out that the “force” that turned this into felony second-degree robbery was questionable, at best.

Eitzen has been a longstanding opponent of the state’s “sentencing guidelines” – the one-size-fits-all sentencing ranges that replaced judicial discretion in Washington some 30 years ago. In her remarks upon sentencing Bell a second time, she argued that the guidelines tie judges’ hands – which gives added strength to the winds of prosecutorial discretion.

“(T)he prosecutor, you all in this room are acutely aware now, is the one who decides what crime to charge,” she said. “They decide which crime to pursue vigorously and which crimes to plead down and let fall by the wayside. And there are many of those. They decide who gets their attention, which of the criminals are most nefarious, which ones deserve to be prosecuted most vigorously.”

“Now, I don’t know why the prosecutor’s office chose to put an inordinate amount of energy and time and taxpayer money into prosecuting Ms. Bell,” she continued later. “I don’t know that. Maybe they know things I don’t know. A lot of times they do. A lot of times the judge doesn’t get the whole story. But nobody has told me anything pursuant to the sentencing that makes any of this make sense.”

Deputy Prosecutor Jack Driscoll said his office tried to charge the case fairly based on the facts, and offered a no-jail plea deal before trial – though it was still a felony. The decision to appeal was “fairly standard,” he said, and based on the feeling that Eitzen hadn’t properly justified her decision, which the appeals court agreed with.

When I asked him why the office had seemed overzealous about this case, given all the overwork and overcrowding in the system, he reminded me that it was Bell, after all, who started this.

Which is true. And which isn’t really the point.

“If anybody … thinking of committing any kind of theft were to see this case, this is the biggest deterrent I could think of,” Eitzen said. “(Bell) has lost four years of education. She can’t get a job. Nobody will let her live in their home. How much worse could it get? If this doesn’t deter somebody from committing theft, there is nothing that can deter somebody from committing theft. To put her in jail at $125 a day to the taxpayers for 90 days only compounds what’s happened here in this case. I, for the life of me, cannot see how that helps anybody.”

Shawn Vestal can be reached at (509) 459-5431 or