People v. Busse, 2016 IL App (1st) 142941 (December). Episode 280 (Duration 8:27)

A paltry crime for a paltry sum does not warrant the paltry sentence of 12 years.

Paltry Facts

Defendant pilfered $44 in quarters from a vending machine on the University of Illinois at Chicago campus.

For this, he was convicted of burglary committed in a school and sentenced to 12 years in the state penitentiary.

Essentially, he was using a wire hanger to “fish” quarters out of vending machines. Defendant was mandatory x eligible.

The Crime

Burglary committed in a school is a Class 1 felony with a sentencing range of 4 to 15 years. 720 ILCS 5/19-1(b); 730 ILCS 5/5-4.5-30(a). Because of defendant’s prior convictions, he was sentenced as a Class X offender. 730 ILCS 5/5-4.5-95(b).

He does not dispute his eligibility for a Class X sentence, and the 12-year sentence is well within the permissible statutory range of 6 to 30 years for a Class X offender. 730 ILCS 5/5-4.5-25(a).

 

His History

The State argued for a “substantial sentence” based on his 28 past convictions, including seven felony convictions.

Several convictions were for burglary or theft from coin-operated machines. Defendant was 40 years old. The sentencing judge said that while the facts were not “particularly egregious,” it was offset by defendant’s “egregious” criminal history as a “career thief.” Since,

“nothing up to this point has made an impression upon you *** maybe my twelve-year sentence will make an impression on you.”

Issue

On appeal, defendant argues that his sentence is excessive given the nonviolent nature of the crime and his nonviolent background and that the trial court did not consider the “nature and circumstances” of his prior convictions.

He further contends that the trial court did not consider any of the applicable mitigation evidence he presented or weigh the aggravating and mitigating factors.

Defendant argues that his sentence does not conform with the spirit and purpose of the law and requests that we reduce his sentence to the minimum term of six years or to a reduced prison term.

Analysis

A sentence within statutory limits will not be deemed excessive unless it is greatly at variance with the spirit and purpose of the law or manifestly disproportionate to the nature of the offense.

The reviewing court held that this sentence is both “greatly at variance with the spirit and purpose of the law” and “manifestly disproportionate to the nature of the offense” and thus was an abuse of discretion.

The 12- year sentence is far too long compared to the seriousness of the crime, imprisonment for 12 years will not protect the public, and a lengthy prison term is no more likely to rehabilitate than a far less onerous one.

In fashioning the appropriate sentence, the most important factor to consider is the seriousness of the crime. See 720 ILCS 5/1-2(c).

Defendant did not “break in” to the UIC building; he apparently walked inside during the middle of the day.

He was not armed and did not use a weapon of any sort.

No UIC students were threatened or harmed during his theft.

He did not even damage the vending machines.

The reviewing court found it difficult to conceive of an argument that he deserves 12 years in prison due to the seriousness of his offense. Defendant was convicted of burglary because he happened to steal from vending machines at UIC, a school from which he had previously been banned. 720 ILCS 5/19- 1(a), (b). This made his crime a Class 1 felony (and eligible for Class X sentencing). 730 ILCS 5/5-4.5-95(b).

Change Facts Just A Bit

If he had stolen $44 from vending machines at a different location, he would only have been guilty of a Class 4 felony and ineligible for Class X sentencing for this crime. 720 ILCS 5/16-1(b)(2).

His sentence could have been as little as one year. 730 ILCS 5/5-4.5-45(a).

Non Violent Offender

The reviewing court felt confident that the legislature created Class X sentencing to protect the public from murderers and rapists, not penny-ante pilferage. There is no serious argument that this sentence is necessary to protect the public. His criminal history is boringly repetitive (nine previous convictions for stealing from coin-operated machines) but hardly serious.

Of his 28 convictions, almost all involve theft, but not a single one involves violence against another person.

His may be a “career thief” but not a dangerous or greedy one either.

Even the economic harm that he caused to UIC in this case is so miniscule that imprisoning him for twelve years cannot be justified to prevent future $44 heists.

The desire to rehabilitate a defendant through imprisonment is a valid one.

What To Do With Him?

But the trial court’s rationale for its sentence—to “make an impression” on him—is ineffectual based on his having spent a number of years in prison already.

While it is certainly frustrating that defendant has continued along this path, it is unlikely that a further 12 years of imprisonment will rehabilitate him.

If no rehabilitation can be achieved, then the only justification for a lengthy prison sentence is the desire to punish him. How much punishment is called for when a man filches quarters from a vending machine?

The court said it was statutorily required to sentence him to between 6 and 30 years of imprisonment. But as has been illustrated, this statutory requirement is nonsensical for this defendant who is not a danger to the community and whose prison stay, whatever its length, probably has little chance to rehabilitate him.

And whatever the sentence, it will not reflect any public judgment that stealing from vending machines is a severe societal problem. Here, the statute operates as reflexive—an unthinking, mechanical application of laws that were never intended for a defendant such as this.

Holding

This is unjust, not just to defendant, but to a public that will see this sentence and feel no confidence that our criminal justice system knows how to distinguish between a dangerous criminal and a homeless man who loots vending machines with a wire hanger.  

Further, does his crime—pinching 176 quarters out of vending machines—require the taxpayers to pay close to 1,000,000 quarters to imprison him for 12 years?

Even in the minimum security facility where Busse is currently incarcerated, the average annual cost per inmate is $20,627; 12 years of incarceration would cost almost a quarter of a million dollars.

Society can do nothing more for defendant in this case.

But our legislature is certainly able to amend the Class X sentencing statute to encompass felons who are violent, or whose crimes escalate in seriousness and harm to the public, without also taking in defendants whose crimes remain petty.

The court reduced his sentence to 6 years.

See the dissent who wrote that the answer is certainly not to simply keep reimposing the minimum term or that a trial judge necessarily abuses his discretion when he concludes that such a result is unwarranted.