For robbery of $33 of underwear, Illinois appeals court upholds 10-year sentence

A divided Illinois Appellate Court panel has upheld a 10-year prison sentence that a Cook County judge gave a homeless drug addict convicted of the 2015 robbery of a Family Dollar Store on the West Side in which he got away with $33 of T-shirts and underwear.

Appellate Judge Terrence Lavin, writing for himself and Appellate Judge Mary Anne Mason, said it isn’t the job of the appeals court to substitute its judgment for that of the trial judge, Cook County Circuit Judge Mary Margaret Brosnahan. She imposed the harsh sentence on David Lundy, who had 10 prior convictions, most on theft and drug charges.

In a dissent that invoked Nelson Mandela, Appellate Judge Michael B. Hyman wrote that the “sentence punishes Lundy more for the numerous difficulties brought about by his economic status (impoverished), illness (drug addiction), and condition (homelessness) than for the offense for which he was convicted.”

Hyman wrote that the most serious offense Lundy previously was convicted of — robbery and aggravated battery causing great bodily harm — happened more than 22 years ago.

“Since then, Lundy has been convicted of drug offenses and theft,” Hyman wrote. “No violent crimes.”

He also cited a quotation from Mandela: “A nation should not be judged by how it treats its highest citizens, but its lowest ones.”

Lundy, now 52, was stuffing the underwear into his baggy pants and jacket, and, when a store employee confronted him, he pulled a pocket knife and warned her to back off.

As he left and employees tried to get the underwear back, Lundy threatened, “I’m going to kill you,” then added, after an epithet, “with this knife.”

The police, flagged down by store employees, arrested him and found three packages of T-shirts, a package of underwear and a red pocketknife in his pants pocket.

In his dissenting opinion, Hyman wrote: “The majority portrays Lundy as dangerous, a betrayal of the facts. Rather, the testimony of the two store employees describes a minor incident. Again, one employee said that Lundy’s behavior was ‘not that upsetting for a small woman like me,’ and the other expressed no fear or concern for her safety.”

He noted that Lundy’s sentence for armed robbery without a firearm amounted to one year in prison for every $3.33 of merchandise he took.

But the other two judges focused on the limited role of the appeals court, writing, “Our role to determine that the aggravating factors present in this case are outweighed by what the dissent characterizes as the ‘small, petty, and sad’ nature of the crime.“

Abigail Blachman reports for Injustice Watch, a nonpartisan, not-for-profit journalism organization that conducts in-depth research to expose institutional failures that obstruct justice and equality.