A Thirty-Five Year Prison Sentence for Spitting at a Police Officer: The Danger of Basing Justice on Mistaken Assumptions

By SHERRY F. COLB


Wednesday, Jun. 11, 2008

Last month, Willie Campbell was sentenced to 35 years’ imprisonment for spitting at Dallas police officer Dan Waller. The sentence was based in part on a jury finding that that because Campbell was HIV-positive, his spit qualified as a deadly weapon. As a result of the finding, Campbell will have to serve at least half his sentence before he is eligible for parole. The sentence is troubling, because it rests on fact-finding at odds with scientific evidence regarding the transmission of HIV.

Willie Campbell is admittedly not a terribly sympathetic character. One reason for the length of his sentence is that prior convictions give him “habitual offender” status, which means that he could be sentenced to no less than 25 years’ incarceration for his crime. Furthermore, at the time Campbell committed the offense at issue, “harassment of a public servant,” he was in the process of resisting arrest for public intoxication. He spit into Officer Waller’s eye and mouth while Waller’s mouth was open and subsequently told Waller that he – Campbell – had AIDS, thus frightening Waller into believing that he too would contract HIV.

Campbell’s actions were reprehensible and disgusting. It is appropriate that they are classified as criminal and that they are punished. The question, however, is how severe such punishment should be – and whether it ought to turn at all on fact-finding at odds with the relevant science.

Proportionality of Punishment, the Eighth Amendment, and “Deadly” Spit

The U.S. Supreme Court recently heard argument on the question of whether execution is an excessively severe penalty for the rape of a child, a case which I discussed in a FindLaw column as well as a blog post. In the course of oral argument, Chief Justice Roberts indicated a reluctance to judge the proportionality of allowing a death penalty for any particular crime. He cited, by analogy, the Court’s refusal to deem a prison sentence excessive, under the Eighth Amendment’s ban on cruel and unusual punishments, regardless of how trivial the offense or how long the sentence. For purposes of the U.S. Constitution, then, Campbell’s sentence will almost certainly survive any Eighth Amendment scrutiny it faces. If shoplifters and other small-time criminals with a long record of prior offenses can receive a life-sentence, then a spitter with a record can almost certainly be imprisoned for 35 years.

In this particular case, however, the harshness of the penalty turns in part on the jury’s conclusion that an HIV-positive person’s saliva is a deadly weapon. Yet public health officials at the Centers for Disease Control (CDC) have said that not a single person has contracted the virus through exposure to saliva or tears in the twenty-five years since HIV was first identified. Thus, if there was any risk that Campbell’s spit would kill Waller, the risk was vanishingly small.

Still, some might respond, because we cannot rule out the risk of HIV transmission to an absolute certainty, Campbell should perhaps have to face the consequences of having imposed even a trivial risk of death. After all, Campbell chose to spit at his victim, without the victim’s consent, knowing that he, Campbell, was infected with a deadly virus.

The problem with this argument is that it proves too much. It is rarely the case that we can completely rule out the risk of any particular activity’s leading to death. Yet the jury here made a finding that Campbell’s spit was a deadly weapon. Presumably, if Campbell had thrown a pie at Waller, the jury would not have made this finding, despite the fact that one could construct a scenario in which assault-by-pie results in a fatality (for instance, if the pie contains trace amounts of peanuts and the victim has a peanut allergy). By finding that Campbell’s saliva was a deadly weapon, in other words, the jury necessarily concluded that an assault with the saliva posed a greater risk of death than do other unlawful acts for which the risk of death cannot – as it generally cannot – be completely ruled out.

For the jury to draw this conclusion, then, it had to find that a risk of which there is no supporting evidence was great enough to transform spitting into a person’s face, an admittedly disgusting act, into something akin to beating a person with a lead pipe or shooting him with a gun. The jury should not have been free to make such a finding. That it did so represents the triumph of ignorance and fear over truth.

None of this is to deny that what Campbell did was extremely offensive. It appears that he deliberately led Waller to believe that the spitting could result in Waller’s contracting HIV. It would, however, have been arguably just as offensive if Campbell had been lying about being infected with HIV. To put it differently, the harm of the comment lies in the mental distress deliberately induced, rather than on Campbell’s HIV status.

Consider an analogy. You tell a gullible friend that you are a witch (or a wizard) and that if you pull your friend’s hair, he will contract a fatal pneumonia. You then pull his hair. Your friend is terribly upset and desperate not to become sick. You have acted wrongfully, both in assaulting your friend (by pulling his hair) and by falsely suggesting to him that the assault could result in his death. Your words do not, however, transform hair-pulling into an assault with a deadly weapon.

Playing Devil’s Advocate

What if, instead of pretending to be a witch or a wizard, you gave your friend an envelope and told him to open it. When he did, he found that the envelope contained a white powder, which you told him was anthrax. As it turned out, however, the powder was actually corn starch. Shouldn’t you be subject to extremely harsh penalties for such conduct? Isn’t this tantamount to a mock execution or an act of terrorism?

This hypothetical example does seem very serious, and it should perhaps result in a severe penalty. Still, 35 years’ imprisonment might appear excessive. Furthermore, this example is in some ways distinct from Campbell’s case, because Campbell’s jury did not have to make a finding regarding the degree of anxiety that Campbell caused in his victim – as it might have had to do in the case of an anthrax scare. It was instead asked to determine whether Campbell’s spit was a deadly weapon. And the jury’s conclusion that it was deadly was incorrect on the facts. If the crime were defined or the sentence elevated for the mental distress that it occasioned, then the resulting punishment might have been more defensible than it was.

Another feature of the case that might seemingly help justify Campbell’s very harsh treatment is the possibility that Campbell himself shared the mistaken belief that saliva can transmit HIV. If so, he would not simply have been taunting the police officer; he would have been truly attempting to cause Waller substantial bodily harm or death. If Campbell thought he was directing a deadly weapon at a police officer, this belief alone could make him guilty of something like attempted murder, even if he was mistaken in his belief. One could, for example, analogize the viral load present in saliva to blanks in the chamber of a gun that a shooter believes is loaded with live ammunition. Under such conditions, a 35-year sentence might not seem disproportionate at all.

Again, however, the key factor that changed the character of Campbell’s crime from mere “harassment of a public servant” into an offense considered a violent crime on the order of a near-lethal assault was the classification of Campbell’s saliva as an actual deadly weapon. Because it was not, in fact, deadly, this erroneous classification should not have been permitted to stand and to influence the ultimate sentencing decision, as it presumably did.

Reinforcing Prejudices about People with HIV

Part of what makes this jury’s factual error particularly troubling is that it reflects the widespread but inaccurate belief that people who are HIV-positive are a highly contagious threat to the lives of those among whom they live. This faulty perception leads to discrimination and mistreatment, both of which are unlawful as well as cruel.

Though there are some highly contagious diseases that might require quarantine to protect the public safety (such as multi-drug-resistant tuberculosis), AIDS is not one of those diseases. To allow a person’s long-term incarceration on the basis of false assumptions about HIV and AIDS serves, among other things, to further entrench existing prejudices. It tells people that if you believe something strongly enough, then that belief makes its object true. But as Daniel Patrick Moynihan said, “You are entitled to your opinion, but you’re not entitled to your own facts.” That should be especially true in a court of law.


Sherry F. Colb, a FindLaw columnist, is currently a Visiting Professor at Columbia Law School and will be joining the Cornell Law School faculty in the fall. Her book, When Sex Counts: Making Babies and Making Law, is currently available on Amazon.

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