The law is ironclad and unambiguous: commit an armed robbery in Georgia and you’re going to prison for 10 years minimum.
Except, that is, if you can make a deal.
In 2009, Sabre Ameen walked into a retail shop, pulled a gun on the clerk and ordered her to hand over cash from the register. Ameen, charged with armed robbery in DeKalb County, reached an agreement with the prosecutor that let him plead to a reduced charge. He got five years in prison and is eligible for parole.
No such luck for Todd McGordon.
In 2006, McGordon didn’t hold the gun, didn’t threaten the clerk, didn’t even go into the store. In fact, he had spent the day trying to talk his brother out of robbing a Covington supermarket at gunpoint. He is now serving 12 years in prison without the possibility of parole.
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The two cases provide a revealing picture of Georgia’s mandatory minimum sentencing laws. When it comes to armed robbery, the prosecutor is holding all the cards: One district attorney may choose to plead a case down, while another district attorney will go for the mandatory minimum on a less egregious case.
“We have 49 district attorneys in Georgia and each has his or her own sentencing philosophy and enormous power to dictate what crime their defendants will be convicted of and what sentence will be imposed,” said Stephen Bright, senior counsel for the Southern Center for Human Rights in Atlanta.
“And there’s no consistency between what one prosecutor’s approach is as opposed to another,” he said. “So we don’t have a system of equal justice. We have a system of arbitrary justice.”
Georgia’s mandatory minimum sentences have kept some of the state’s most violent criminals off the streets. They have also contributed greatly to the state’s $1.1 billion annual corrections tab.
Recently introduced legislation would give some flexibility to the now-inflexible sentences for a number of serious felonies, including armed robbery and certain sex crimes.
Under House Bill 349, if a prosecutor and a defense attorney reach an agreement, the judge could sentence a defendant to a prison term below the mandatory minimum. Judges could also depart from mandatory minimums in some drug-trafficking cases, provided strict criteria are met.
The legislation is sponsored by leading conservative lawmakers and Gov. Nathan Deal.
Last year, Deal appointed a panel of criminal justice experts who took a hard look at Georgia’s mandatory-minimum sentencing laws. Their recommendations are part of HB 349.
In a recent interview, Deal said his council’s recommendations “make a lot of good common sense, quite frankly.”
“Truth in sentencing encourages them to plead to the real offense for which they were charged, but to have some leniency, perhaps you might say, with the agreement of the prosecutor and the defense attorney and the judge,” Deal said. “Not every case is the same.”
There’s a big difference in some sexual offenses involving consenting teenagers a few years apart in age “as opposed to a 53-year-old and a 3-year-old victim,” Deal said. “They can be charged with the exact same thing and the exact mandatory sentences apply.”
‘I was not a liberal sentencing judge’
The same applies to other serious crimes, judges say.
“Armed robbery can constitute all kinds of things – from actually using a loaded weapon to using a replica of a weapon, to using a screwdriver or no weapon at all but appearing to have a weapon,” said Chief Superior Court Judge Walter Matthews in Rome.
While a judge in a courtroom can easily weigh differences in cases and the histories of a defendant, a one-size-fits-all approach to sentencing simply brings the hammer down on everybody – no matter what the subtleties of the case.
Georgia Court of Appeals Judge Michael Boggs was co-chair of the Special Council on Criminal Justice Reform that recommended the changes included in HB 349.
“I was not a liberal sentencing judge,” Boggs recently told a House subcommittee. “I just believe as a judge you have the opportunity to weigh credibility of witnesses, to judge the weight of the evidence and some due deference ought to be given to the individual in that situation.”
Boggs told the subcommittee he had the “displeasure” of having to impose a 10-year mandatory sentence on a 17-year-old honor student that he did not feel was appropriate given the facts of the case.
The way the law works now, only prosecutors – not judges – have the authority to extend leniency.
An Atlanta Journal-Constitution review of dozens of robbery convictions obtained across the metro area found that many of them started out as armed robbery cases that were pleaded down to the reduced charges.
“We’ve all done it,” said Robert James, the district attorney of DeKalb County, where Sabre Ameen’s case was prosecuted.
“Not all armed robbers are created equal,” James said. “I’ve prosecuted some armed robbery cases where the offenders needed to be gone – locked up a long, long time. There are others where that’s not been the case.”
Prosecutors allow for guilty pleas to reduced charges for numerous reasons, James said: problems with evidence, the age of the defendant, a defendant’s cooperation with the prosecution against a co-defendant, unusual circumstances of a case, mitigating factors on a defendant’s behalf.
Atlanta store holdup
Ameen, 26 and an unemployed father of six, was indicted for the May 14, 2009, armed robbery of a Moreland Avenue retail shop.
Before his case got to court, Ameen struck a deal: He would plead guilty to a reduced charge of robbery and then-Superior Court Judge Michael Hancock would have the final say on the sentence.
At the Feb. 18, 2010, plea hearing, Assistant District Attorney Tunde Akinyele recited the facts of the case: After Ameen, wearing a distinctive Obama T-shirt with bright silver letters, held up the clerk at gunpoint, witnesses saw him fleeing the store to a car and then to an apartment, where he was arrested.
Akinyele recommended that Ameen, who had prior misdemeanor convictions, should get five years in prison and five more years on probation.
“On armed robbery?” asked Hancock, apparently confused because the mandatory prison minimum for armed robbery is 10 years, not five.
“On robbery, sir,” the prosecutor said.
“What?” Hancock asked again.
“On robbery,” Akinyele replied.
“On robbery,” Hancock said.
Ameen’s public defender asked for a four-year prison term, noting that her client had no prior felony convictions.
“Don’t get me started,” Hancock said. “This is sure enough armed robbery. And as I’ve been saying for years, the reason why the Legislature made the penalty for this offense like it is, is because of the fact that this situation is pregnant with the possibility of the loss of life, and there is the matter of psychological damage that is done to folks as well.”
A ‘major break’
Hancock said six years in prison seemed more appropriate. Ameen was already getting a “major break” with a sentence below the mandatory minimum.
“I’m not going to be a party to encouraging people to commit this kind of offense … in this county,” Hancock said. “So there it is.”
But he then followed the state’s recommendation and gave Ameen five years in prison.
Just a few months earlier, a fellow DeKalb judge was not as disturbed with the resolution of another armed robbery case.
On Feb. 7, 2009, Gonzalo Herrear and Carlos Remigio, one of them holding a handgun, stopped a GMC Yukon whose four occupants were leaving church services. The four men were told to get out of the Yukon and leave their wallets inside. They called police after Herrear and Remigio sped away.
Police spotted and followed the Yukon until it spun off the road and rolled onto its roof.
Police found Herrear and Remigio and their victims’ wallets inside the vehicle; the handgun lay on the roadway nearby.
They were indicted for armed robbery but prosecutors allowed them to plead to robbery.
Herrear’s lawyer, Jean Sperling, told Superior Court Judge Gail Flake his client was “the prime example of, to be honest with you, a very serious offense, a very foolish act with no ill will and no evil intent. … You don’t have a defendant before you who is a threat to society, in the true sense of the word.”
Remigio did not have the gun and went along with Herrear when the carjacking occurred, Remigio’s lawyer, James D. Perry, said.
“The state’s recommendation is extremely reasonable to agree to reduce this to robbery,” Flake said.
She then gave the two men seven-year prison terms. They will be eligible for parole.
Brothers at odds
Todd McGordon never held the gun during the armed robbery for which he was convicted. He also may have prevented his brother from starting a deadly shootout with police.
On July 3, 2006, McGordon’s brother, Trabis, said he planned to commit an armed robbery. For the rest of the day, McGordon tried to talk his younger brother out of it.
“I looked at him and called him stupid,” Todd McGordon later testified. “I told him that he could hurt someone or even get hurt, (that) he could hurt a child or an innocent bystander.”
It didn’t work. The following is according to testimony of both brothers:
That evening, the two drove Trabis’ red Monte Carlo to an Ingles grocery store in Covington.
Before his brother got out of the car, Todd begged him again not to do it. Undeterred, Trabis told him to drive the car to a nearby apartment complex and walk away if he wanted to.
McGordon drove the car to the complex but stayed and waited. “I just felt something bad was going to happen to him,” he said.
The younger McGordon donned a mask and entered the store. He put his gun to an employee’s head and then pointed it at two others. He held out a white garbage bag, which they filled with more than $12,000 from the safe.
He then raced to the car and told his older brother to get inside. Before they could escape, police arrived and blocked the Monte Carlo’s path. Trabis would testify he told Todd he was going to try and shoot his way out of it. But Todd talked him out of it and the two brothers were quickly arrested.
‘He drove the car’
Trabis skipped a trial and pleaded guilty to armed robbery; he was sentenced to 10 years in prison.
At Todd’s April 2007 trial, Newton County prosecutor Melanie McCrorey Bell accused him of being the getaway driver. “Despite whatever bad idea he thought this robbery was, despite telling his brother he shouldn’t do it, he drove the car.”
The jury agreed and convicted Todd as a party to the crime of armed robbery and the other crimes his brother committed. His sentence: 12 years in prison without the possibility for parole.
‘No way out, unless you reduce the charge’
Fulton District Attorney Paul Howard is one of the state’s strongest proponents of mandatory minimum sentences. They have helped reduce the violent crime rate and, if evenly applied, help eliminate racial disparities in sentencing, he said.
Howard acknowledged that deals are often cut by his office and others to enable some defendants to escape the mandatory minimums.
“We don’t have a perfect system,” he said. “At least the attempt was made to accommodate someone who might exhibit some factors that are worthy of a sentence reduction.”
Gwinnett District Attorney Danny Porter, a member of Deal’s criminal justice reform council, said a slight difference in the age of defendants charged with certain sex offenses can have enormous ramifications.
If a defendant is charged with committing a sex offense with a teenager just days after the defendant had turned 19, for example, this person can face a 25-year mandatory-minimum prison sentence, as opposed to a misdemeanor, he said.
“If we keep trying to pound every single peg into a square hole we’re going to run across cases where there is an injustice,” Porter said. “The recommendations are good policy. They provide an opportunity for an evaluation of each case on its merits. As it is now, there’s no way out, unless you reduce the charge.”
‘Start with prison, end with prison’
The threat of a mandatory minimum sentence deters people from committing crime, supporters of the harsher punishments say. But experts discount that assertion.
Unquestionably, longer sentences keep some dangerous criminals off the streets. But they may not have much deterrent value.
“Increasing already long sentences — there is no evidence this has a material deterrent effect,” said Daniel Nagin, an expert in criminal justice at Carnegie Mellon University. The problem with locking up so many people for so long is that some of them who don’t pose a significant risk are detained for years: people who age out of criminal behavior or people who aren’t, by nature, career criminals.
“There are lots of ways of preventing crime that are much cheaper and more efficient than what we’re doing now,” Nagin said. He suggested spending money on more police rather than bigger prisons, arguing that a greater police presence is a far more effective deterrent.
Edward Latessa, a criminal justice expert at the University of Cincinnati, said many offenders can be handled effectively outside of prison with supervision programs.
“If they screw up we always have prison,” he said. “Why start with prison? That’s what minimum mandatories do. They start with prison and they end with prison.”
Less than four vs. greater than 11
Prisoners whose primary offense is robbery serve much less time than those convicted of armed robbery – in part because they are eligible for parole. In 2012, 58 percent of robbery convicts released from prison got out early through parole, which is not an option for those convicted on armed robbers. The average time served on a robbery conviction was just under four years in 2012. Armed robbery convicts released in 2012 served on average more than 11 years.