The Other Face of Torture

Cell Door Detail, Eastern State Penitentiary, Philadelphia, PA

Earlier this week, I discussed a “pleading crime,” misprision of a felony.  Pleading crimes are offenses that parties rely upon to terminate criminal cases by way of plea deals.  Today, prompted by the recent acquittal of a California man on charges that he tortured and murdered a former adult film actress, I’ll talk about another, arguably more troubling class of criminal offenses within the criminal-code “ecosystem”—“charging crimes.”

Charging crimes are offenses that prosecutors commonly rely upon to persuade a defendant that a plea to lesser or other charges is in their best interests.  Charging crimes are often peripheral to the gravamen of a defendant’s misconduct, such that a prosecutor may not insist on convictions on these counts, on top of convictions of the “core” charge or charges.  Nevertheless, charging crimes raise the prospect of a stiffer sentence upon conviction, which gives the defendant an incentive to come to terms with the prosecution, and thus, an incentive for the prosecutor to include these counts in the initial charging mix.

OK, but what does all this have to do with torture?  Well, while I haven’t done much research on the existence of charging crimes within state codes (most of my work on this point involves federal offenses that may amount to charging crimes, like use of fire or explosives in the commission of a federal felony [18 U.S.C. § 844(h)], witness tampering [18 U.S.C. § 1512(a)], and hostage taking [18 U.S.C. § 1203]), I suspect that under California law, torture may represent such an offense.

Here in California, the crime of torture (Penal Code, § 206) occurs when an individual, acting “with the intent to cause cruel or extreme pain and suffering for the purpose of revenge, extortion, persuasion, or for any sadistic purpose, inflicts great bodily injury” on the person of another.  Torture is punishable by a life term in prison (a defendant sentenced to life in California may be eligible for parole in as little as seven years, however).

Torture is broadly worded, such that it’s not that hard to prove; it overlaps with several other crimes; and it carries severe sentencing consequences.  These circumstances make torture susceptible to charging by those prosecutors who may, in the final analysis, care less about what particular crimes a specific defendant is convicted of than about the defendant receiving a particular dollop of custody time. Toward this purpose, the in terrorem effect of a torture count may encourage a defendant charged with this offense to plead guilty to lesser crimes, such as assault, that carry shorter sentences than the torture offense—but enough time to satisfy the prosecution (and judge).  In return, the torture count will be dismissed, and its life term averted.

These situations aren’t merely theoretical.  Recently, in San Jose, two brothers accepted plea deals to lesser charges that carry sentences of (respectively) two to seven and two to eight years in prison, after they were charged with torture for assaulting a former friend whom they suspected of molesting an eight-year-old girl (the stepdaughter of one of the two defendants).  In matters such as these, a torture charge effectively creates a high-stakes game of chicken between the prosecution and the defense, except that the prosecution is driving an 18-wheeler; the defendant, a subcompact.

All this is not to say that defendants charged with torture or related offenses are not accused of serious crimes—they are; nor that these defendants, if convicted, should not be held accountable for their actions—they should be; nor that the torture charges are somehow unsupported by the evidence in these cases—they are, which is the very problem. Instead, the point is simply that by creating such a broad crime that carries such a severe sentence, California voters (torture having been enacted by initiative in 1990) have provided prosecutors with a very substantial bargaining chip, and they can’t be too surprised when, as in the San Jose case, it’s used to win some pots that one might wish had gone unclaimed.

Cellblock, Eastern State Pen.

Cat Statuette, Eastern State Pen.

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3 Responses

  1. A.J. Sutter says:

    “[I]t’s used to win some pots that one might wish had gone unclaimed” – the meaning of this isn’t exactly clear from your post. E.g., was the assaulted former friend actually guilty of the assault? If not, seems like the torture charge was appropriate. If he was, would the torture have done anything to reduce the likelihood of the person committing a similar offense in the future? Was there some obstacle to prosecuting and convicting the (supposedly gulity) former friend? These are the same issues about vigilantism that come up on any number of Law and Order episodes. What exactly are you saying is the problem with the torture charge in this case, given that the facts support the charge?

  2. Kyle says:

    @A.J.: Thanks for the comment. As background, many locals out here have protested the sentences in the referenced case are too harsh, and have argued that the case should not have been brought at all. (The victim of the alleged torture pled guilty to the molestation.) Had the case gone to trial, there was a reasonably high chance of nullification or, at least, a hung jury. The torture charge, of course, gave the defendants a strong incentive to forego trial, since if they were convicted they would be looking at a possible life term.

    There’s nothing absolutely wrong with the torture charge in the case, to the extent that it may have been fully justified by the facts. It’s simply that this charge, in cases like that above, may lead to plea bargains in cases that the general public might be more comfortable in leaving to jury adjudication, or relying on prosecutorial discretion NOT to bring because of the high odds of acquittal for the “other,” lesser crimes at trial. Furthermore, though I acknowledge that I don’t have any insight into the thought processes of the prosecutors in the San Jose case, I find somewhat discomforting the existence of crimes that are, in the normal course of business, used more for leverage purposes than for obtaining convictions on their own terms. I think that such offenses call into question the sincerity of the criminal sanction.

    It’s a complicated issue (at least to me). I wrote about it in a recent piece called Facilitating Crimes, but I remain unsure that I’ve pinned down all of the relevant issues.

  3. Matt says:

    I’m sympathetic to a lot of this, and think that over-charging is often a real problem, and that there are too many and too many duplicative criminal laws, but I wonder about this bit:

    “It’s simply that this charge, in cases like that above, may lead to plea bargains in cases that the general public might be more comfortable in leaving to jury adjudication, or relying on prosecutorial discretion NOT to bring because of the high odds of acquittal for the “other,” lesser crimes at trial.

    I’m pretty hesitant to make that a ground for not taking a case to trial or trying to get a conviction via plea bargaining. In this case, that the people involved were (rightfully) angry is no reason to allow them to violently attack others, and especially no reason to allow any sort of winking official sanction of such actions, as would have happened, I’d think, if the case hadn’t be brought. It’s too close to situations where a jury might refuse to convict people who committed racial violence to my taste. There are surely hard issues here, but this is an aspect I’m pretty unhappy about. (I’ll admit that I’d feel less unhappy in the case of most drug crimes, but I think a distinction can be made there.)