One of the most unfair provisions in Wyoming law is our “habitual offender” law.
Specifically, our criminal statutes say someone is a “habitual” or career criminal if they have two or more prior felony convictions and are convicted of a violent felony after that. It brings a mandatory prison sentence of 10 years to 50 years.
But if the person has three of more prior convictions, this results in a mandatory life sentence. The judge has absolutely no discretion in sentencing.
This “tough on crime” era movement allowed for an expansion of the career criminal idea with a “three strikes and you’re out” approach.
But the concept of the career criminal interestingly stemmed from eugenic pseudoscience. In short, the development of a superior race would address many social, societal, crime and disease issues.
With these ideals, the premise of the “habitual offender” laws spread across the country with 42 states enforcing them by the middle of the century.
This was an era of lobotomies, pigeonholing and misunderstanding that the criminal justice system still hasn’t shed.
The same academics who believed you could diagnose a criminal prior to their crime based upon their bone structure helped develop the bones of the criminal justice system you see today.
One such researcher before the turn of the century, released a book called “How to Deal with Habitual Criminals,” on the premise that children are bred into crime.
Later works by following academics proposed that crime was akin to smallpox, and that if only it were segregated it would be eradicated from society.
We must be tough on crime, but common sense in this instance may not be as obvious as your gut initially tells you. Please, let me expand.
The reason habitual enhancement requirements are dangerous to our system is because the Defendant is at an extreme disadvantage because the risk of trial is so high.
Jury trials are very unpredictable. It’s hard to get 12 people to agree on what to have for dinner, let alone the fate of their fellow man.
Typical options like cold pleas (meaning, just pleading guilty and hoping for mercy from the judge) to avoid risk of trial are not available because the judge’s hands are tied.
The sentence of life for the “big bitch” (as many defense attorneys call it) or big habitual enhancement, is required for the judge to give.
In the face of this reality, a prosecutor who wants to lay the hammer down can stack the deck severely in terms of negotiations and options.
With such harsh mandatory penalties looming on the threat of a lost trial, even the prosecutor’s most unreasonable settlement offers seem worth considering.
But imagine the impossible position of a defendant if they are in fact innocent, overcharged, or there is more to the story.
The most troubling thing is that it doesn’t take all that much these days for someone to get charged with aggravated assault and battery, for example, which would be one of the previous charges that could lead to the habitual scenario.
Over the years, I’ve represented many people charged with this offense.
The facts underpinning such a charge could range from young people fighting, to a man defending a woman’s honor in a crowded venue, to gentlemen having a disagreement at the local watering hole.
Obviously over the course of one’s life, such scenarios could surface. And let’s be honest – in 2025 any ole dust up from the Friday nights of old are now chargeable felonies.
My experience of Wyoming prosecutors is that they charge it, and figure the jury can sort it out.
Any of these scenarios still constitute a “violent felony” under the habitual offender statute.
The entire notion of the unfair leverage, to me, seems violative of Eighth Amendment guarantees.
In fact, the Wyoming Constitution gives even greater protection in this area: it defends the individual from cruel “or” unusual punishment, instead of the cruel “and” unusual punishment the United States Constitution curbs.
Many of the people charged with these qualifying offenses are normal people in our communities who have careers and families.
Moreover, accumulating two or three offenses during the entire course of one’s life is not as uncommon as you may think amongst the general populace.
When a criminal defendant has absolutely no leverage, he has a constitutionally impaired ability to fight for his freedom and a fair process.
That is an aspect of our system which deserves a hard look and further analysis on better ways to prevent crime and guarantee constitutional fairness.
Murderers, rapists and child molesters in Wyoming oftentimes do not receive life sentences. Especially in a mandatory fashion.
So where is the proportionality in a system that hands the State enough power and control to leverage a disadvantaged defendant?
Cowboy State Daily columnist Cassie Craven is a University of Wyoming College of Law graduate who practices law in Wyoming. She can be reached at: longhornwritingllc@gmail.com
