Published on Friday, April 6, 2000 in the Dallas Morning News
Texas Man Sentenced To 16-Years For Theft Of 'Snickers' Candy Bar
by Diane Jennings
Texas' reputation as a law-and-order state is receiving worldwide attention after a Tyler jury sentenced a man to 16 years in prison for shoplifting a $1 candy bar.

Calls from around the world have flooded the Smith County district attorney's office and the state district court after Kenneth Payne, 29, was sentenced to hard time for the theft of a Snickers from a Tyler grocery on Dec. 17.

"It was a king size," Smith County assistant district attorney Jodi Brown said after the jury returned its sentencing recommendation, The Associated Press reported.

That comment, by a prosecutor handling her first felony, has left the Smith County district attorney's office scrambling to explain but refusing to apologize for the decision to prosecute Mr. Payne as a habitual offender.

Ordinarily theft of property under $500 is a misdemeanor with a punishment of a $500 fine but no jail time, said Robert Dawson, a University of Texas law professor.

But prosecutors bumped the theft to a felony because of Mr. Payne's history, which includes 10 convictions, including theft, criminal mischief, assault and possession of a controlled substance. One of those convictions was for stealing a bag of Oreo cookies.

Mr. Payne's attorney, Linda Altier, could not be reached for comment Thursday but has said she will appeal.

Mr. Payne, who has spent almost seven years in prison, was on parole for felony theft when he put the Snickers down the front of his pants at the grocery. He was confronted by the owner, who demanded return of the candy.

Jack Skeen, Smith County district attorney, said: "I don't have any second thoughts about the prosecution of the defendant considering the number of convictions that he's had."

He does, however, regret Ms. Brown's "inappropriate" remark. "Any case is serious," Mr. Skeen said, especially one with "this type of criminal record."

Other observers were taken aback by the sentence.

"It's incredibly excessive, and I think it's just symbolic of our whole approach to the use of incarceration, which is just completely out of proportion to any rational strategy for addressing the problem of crime," said Marc Mauer, assistant director of the Sentencing Project, a national nonprofit organization that studies criminal justice issues.

"We've gotten into a public policy that's so punitive in its orientation. If one were to go to other democratic nations - Canada, Europe - I don't think you could find a single juror let alone a whole jury that would consider any jail time, let alone 16 years."

UT Professor Dawson also said the decision to prosecute Mr. Payne as a habitual offender and the subsequent 16-year sentence seemed harsh.

"Most prosecutors have better sense than that," he said. "It does say we're willing to spend an incredible amount of money on incredibly petty matters. The theft of a Snickers bar is still the theft of a Snickers bar."

It costs $14,000 a year to keep an inmate in prison in Texas, and over 16 years, "that probably comes out to about $800 a peanut," Mr. Dawson said. "That seems a little high."

Mr. Mauer said it will cost taxpayers more than $200,000 to incarcerate Mr. Payne if he serves his full sentence.

"It's hard to imagine that taxpayers couldn't come up with some better ways of dealing with crime in Tyler."

Mr. Skeen, however, said "it's appropriate use of taxpayers' dollars when you're talking about keeping a habitual criminal off the streets."

And, he pointed out, a Tyler jury thought so, too.

"Twelve people sat in there and heard all that evidence and felt the appropriate sentence was 16 years."

Mr. Payne faced a maximum of 20 years' incarceration. He was offered a plea bargain of eight years, Mr. Skeen said.

"It doesn't have to be violent crimes when the jury is looking at it. They're looking at a pattern of repeat offenses."

First assistant district attorney David Dobbs said he wasn't surprised by Mr. Payne's lengthy sentence or the resulting reaction.

"We had a situation eight years ago where our office prosecuted a habitual criminal who had 17 or 18 felony convictions for stealing a brisket. He got a life sentence from a jury who was sick of it," Mr. Dobbs said. "It caused the same kind of uproar."

Mr. Dobbs said the jury could have ignored Mr. Payne's history of theft convictions, "but we don't choose to do that here."

Copyright 2000 The Dallas Morning News