16-YEAR TERM FOR CANDY BAR THEFT SPURS DISBELIEF

DA Has No 'Second Thoughts' On Handling Of Repeat Offender

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."