Life in prison for stealing candy!? No, not really.

“life in prison!! for embezzlement, but 5yrs for murder..Vt laws are whacked!!!!!”

That was a comment left under an article I wrote a little while ago about a former route supervisor for the Bennington Banner being charged with embezzlement after he was accused of taking money from the newspaper vending machines. The state filed a “habitual offender” enhancement against him because he had at least three prior felony convictions.

When the state seeks a habitual offender enhancement I write something like “If he is convicted of a new felony, he could face up to life in prison.” That “life in prison” bit, no matter how I qualify it, throws people off. Still, it has to be mentioned because while a life sentence is rare, the fact the defendant is technically facing life can be used against them when the judge sets conditions of release.

Release conditions are their own kettle of fish, so without getting too deep just remember that when a judge is thinking about releasing you while your case is pending one of things he or she thinks about is how likely you are to show up to court later. A life sentence can be a strong incentive to flee, so being charged as a habitual offender can mean tighter release conditions than someone else accused of the same crime, but not of being a habitual offender.

Each criminal offense statute carries limits to how long a person can be jailed for being convicted of it. “Up to life” does not necessarily mean a person will get life any more than a person will get 10 years for embezzlement. What judges often do with habitual offenders is they set the maximum beyond what the statute would normally allow while keeping the minimum bellow the unenhanced maximum.

For the state to be able to file a habitual offender enhancement the defendant needs to have at least three felony convictions on their record. Pretty much any prior felony goes. They can all come from one incident or multiple instances and they do not have to be the same type of crime. Property crimes, felony DUI, assault, they all count. When they occurred does not matter. The felonies can also be enhanced themselves. For example when someone gets convicted of misdemeanor domestic assault, their next domestic assault charge will be a felony even if it would not normally have been. That enhanced domestic assault felony can be one of the felonies the state uses to lay the basis for a habitual offender claim.

Before any sentencing the state has to actually prove it was the defendant in question who committed the prior felonies. The last time I saw this happen it was right after a jury convicted a man of violating a restraining order. He had the option of having the trial in front of the jury that just convicted him or the judge. He picked the judge, who agreed with the state. Challenging a habitual offender claim is often a long shot as the defendant is arguing with documents. When a person gets a criminal history it comes with a lot of identifying information about them. Height, weight, scars, tattoos, etc. all get recorded. Not to say those papers are never wrong, but it's rare.

Habitual offender rules are often called “three strikes and you're out” laws. I don't have much to say about how well they work or don't. I know you can find an anecdote to support or decry pretty much anything the court does, but the idea behind habitual offender enhancement makes sense; if a person keeps committing serious crimes they should face more severe penalties. One key thing to note about the habitual offender enhancement is that unlike a mandatory minimum sentence it grants a judge more leeway rather than restricts it.