Commentary

Perry Co.’s DA could put a homeless man in jail over a Mountain Dew. Is that justice? | Opinion

Prosecutor Andy Bender is a lock for judge in the rural county with a history of get-tough law enforcement

(Image via Flickr Commons)

Current Perry County District Attorney Andy Bender wants to be a judge. Having won both the GOP and Democratic primaries this May, he will achieve that dream, barring a successful write-in campaign this November.

On his campaign Facebook account, he says, “No matter the crime, I have always sought to achieve justice by paying careful attention to the facts of the case, applying the law as it is written and using common sense to seek a fair and just outcome.”

But if Bender does not drop the theft charge against Joseph Sobolewski, then the above statement is nothing more than political bluster. Sobolewski is homeless, according to PennLive, which first reported the story.

Sobolewski stands accused of paying $2 for a Mountain Dew bottle on a 2 for $3 deal, then walking out. For this egregious offense, he was locked up on $50,000 cash-only bond and now faces seven years behind bars.

To convict Sobelewski of retail theft, Bender will have to prove that he deliberately meant to deprive the store of less than a dollar. Much more likely, Sobelewski was in a rush and committed the “crime” of bad math.

That is the kind of charge that an ethical prosecutor would drop immediately, or else go to the store and give its owners a couple of quarters if they felt so aggrieved.

If confronted, Bender may argue that Sobelewski has committed two retail thefts before so he deserves this treatment. That’s the Javert argument, and Les Miserables is not frequently assigned to high schoolers so they can fawn over that character’s level of humanity.

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He could also argue that he wants to stay on the side of the police, who claimed through a spokeswoman that they had no discretion. Even if the police have no discretion—a dubious assertion in and of itself—the DA always does.

If that was not the case, then Philadelphia District Attorney Larry Krasner would have been thrown out of office and stripped of his bar license. The declination policies of Krasner may not be appropriate for or democratically supported in Perry County, but Bender and Krasner use the same statute books and are accountable to the same state bar.

Perry County already suffers from thoughtless criminal justice practices. Measures for Justice, a national nonprofit that collects local criminal court data from around the country, found that from 2012 to 2013, 50 percent of drug possession defendants with no priors received a jail sentence. The state average for the same period was 22 percent.

A small county, Perry County only has two active trial court judges.

Without any expansion of the local bench, any new judge will have a huge influence on what the justice system looks like in Perry County. Unfortunately, it looks like its un-nuanced, inhumane approach is poised to continue.

Rory Fleming is an attorney and writer who has worked for various criminal justice organizations, including the Law Enforcement Action Partnership, Harvard Law School Fair Punishment Project, and the National Network for Safe Communities. He writes from Philadelphia.

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