All I know about Anthony Thornton is what I read in the September 26, 2013 opinion by the Kentucky Supreme Court. I know from that reading that he had two prior felonies at the time that he found himself in the Metro Corrections Center, the jail in Louisville. I know that he is mentally ill, having asserted an insanity defense at trial. I know too that he found himself in the jail being transferred from one place to another. He "resisted" the efforts of Officers Darren Gibson and Laron Stoner as a result of which he was charged with third degree assault. The act was a punch. The injury was a "bruised cheek." First and second degree assault are Class A and B felonies in Kentucky and are differentiated by the degree of injury and whether the defendant is armed or not. They are by nature violent offenses leaving victims in their wake. Third degree assault, on the other hand, was passed long after the Kentucky Penal Code and was intended to protect certain classes of persons. Initially it protected police officers. Later it was expanded to included social workers, EMS workers, volunteers in fire departments–you get the picture. Third degree assault is classified as a Class D felony–the lowest level in Kentucky, carrying 1-5 years in prison. Thornton was tried and convicted of third degree assault and was sentenced by a jury (yes, we have jury sentencing here in the Commonwealth) to 1 year in prison. He would have been eligible for parole in 4 months. Except…

We also have our version of 3 strikes. It means that a person with two prior felony convictions within a particular period of time gets an enhanced penalty. One prior elevates the penalty 1 classification. Two priors elevate the penalty even more. For Thornton, the one year penalty turned into a 20 year sentence. I don't know when he will be eligible for parole because it depends upon the nature of his prior felonies. I know that the Kentucky Parole Board is not kind to persons with prior felony offenses, so he is likely to serve much of his twenty year sentence. Serve-outs are not rare.

So what? What can we learn from this rather mundane, small story that is much like what is occurring everyday throughout the American criminal justice system?

First, Officers Gibson and Stoner could have ignored Thornton's resistance. Happens everyday. Part of the job. Everytime a person whose liberty has been taken, either during an arrest or while being moved inside a jail or prison someone might resist, and a cheek might get bruised. Law enforcement has immense discretion whether to bring a charge or not. Here, because one of them got a bruised cheek, a charge was brought.

The injury was slight. If it was more than a bruised cheek, the charge would have been higher. Why didn't the officer brush this off? Why wasn't this incident dealt with as a jail disciplinary matter?

This was a felony only because Gibson was in a protected class and not because he was seriously injured. Once the charge was lodged, why didn't the prosecutor use her discretion and keep this case out of court?

Thornton was mentally ill. He asserted an insanity defense. He had two prior offenses that likely also involved his mental illness. We can speculate about failed treatment, the effect of our diminished community mental health system, or the fact that our jails are now our largest mental health institutions. The fact is that Gibson and Stoner were moving a mentally ill man in a jail and when he resisted he was charged with an offense carrying a long prison sentence.

We will pay $20,000 per year for up to 20 years for this occurrence. It could cost the taxpayers of Kentucky $400,000 to pay for all of this. We have a budget crisis in Kentucky. We are spending less and less on education, early childhood development, and other social needs. We have a criminal justice system, including the courts and public defenders, starved for resources. But we are willing to spend $400,000 because one day two jail guards were moving a man with a mental illness and he resisted.

What a waste.