This seems to me to be a good test case for whether or not you believe in retribution as a justification for criminal punishment.
Hayden Gerson is seemingly an ordinary fellow, with no apparent criminal history, but in 2016 becomes fascinated with -- and starts heavily using -- DMT and psilocybin ("mushrooms"). His ex-business partner said that he "noticed changes in Gerson after Gerson started using drugs, including 'constantly' talking about various conspiracy theories, claiming he was God and that he had special powers," and had "witnessed Gerson 'high' from marijuana hundreds of times but described Gerson on other drugs as 'something totally, totally different.'”
Gerson's ex-girlfriend, Alisha, said basically the same thing. "During the summer and fall, Gerson began studying Hinduism, started chanting and meditating, used different psychedelic drugs, and started inhaling nitrous oxide. In November, Gerson called Alisha and told her “crazy stuff” such as bringing her deceased sister back. Alisha suspected that Gerson’s drug use caused him to become delusional and not in touch with reality. Gerson later told Alisha that he had been using drugs when he made that telephone call. During this time, Gerson’s social media postings referred to his use of DMT as “life changing” and that mushrooms changed his perspective about death and “now I don’t fear death.”"
All this comes to a head on December 12, when Gerson calls Alisha to his house. When she arrives, "she knew Gerson was intoxicated based on his large eyes, rapid movements, and the tone of his voice. She had never seen Gerson this intoxicated before. Gerson told Alisha that “he was eating mushrooms for breakfast, lunch, and dinner.” Gerson admitted at trial that he was under the influence of psilocybin and nitrous oxide at the time and had also used cannabis that day. Alisha surreptitiously recorded Gerson with her cell phone. Gerson made delusional statements such as causing it to snow in Hawaii and having control because he was Lord Shiva. Gerson then inhaled about 14 canisters of nitrous oxide in front of Alisha. Alisha called the police and told them she had a “5150” with her ex-boyfriend and she needed someone to come over immediately."
The police eventually arrive, and as you might imagine, things do not go well. "San Diego Police Officers John White and Melanie Bognuda arrived at Gerson’s home where Alisha informed Officer Bognuda that Gerson was on drugs and thought he was Lord Shiva. After Gerson refused to comply with Officer White’s command to walk towards him, both officers tried to grab Gerson’s arms to put him in handcuffs while Gerson physically resisted. Officer White deployed his Taser when Gerson ignored his order to get on the ground. The Taser had no effect on Gerson. Gerson then punched Officer Bognuda in the face. Officer White tackled Gerson and both men fell to the ground."
Then Gerson puts White into a chokehold, then Bognuda smacks Gerson on the head (hard) with her baton, and then Gerson retreats to the house and returns with a firearm.
At this point, I gotta give a huge shout out to Officers White and Bognuda. I would 100% have expected them to kill Gerson with a fusillade of bullets. But, to their credit, that doesn't happen. Even though Gerson had previously said (during the struggle) “I’m gonna fucking kill you” and “I will fucking murder you now,” when Gerson retreated to his home, the officers hid behind a parked car, and when Gerson came outside carrying a semiautomatic handgun, they noticed that "[h]e repeatedly racked the gun’s slide," which made "[t]he officers recognize[] that Gerson’s gun was unloaded based on his continual racking of the gun." So they don't shoot, and Gerson then goes back inside his house.
Glad to have officers like that down here in San Diego. No need to unnecessarily kill a guy who's high on drugs and temporarily acting crazy -- albeit incredibly (and dangerously) crazy.
Eventually, the SWAT team arrives, and you can guess what happens then. Gerson's in the house, and the SWAT team hears a shot (Gerson says he fires a warning shot into the air), at which point the SWAT team opens fire with the aforementioned fusillade of bullets, and Gerson fires back. Nobody actually gets hit -- Gerson's sort of hiding in the corner of the room, which means neither side can really hit the other -- and then the SWAT team fires tear gas into the house. Gerson then bolts the house, police hit him with "less-than-lethal" rounds, and sic a K-9 dog on him, which chomps down hard on Gerson and holds. Gerson, no slouch, flips the dog and chokes it unconscious so it releases its grip, but the police then pile on Gerson like there's no tomorrow, and that's the end of that.
So Gerson gets charged with the inevitable flurry of crimes. He's eventually convicted of almost all of them, though on the most serious charges, he's convicted only of attempted voluntary manslaughter, a lesser included offense of attempted murder (Counts 1 and 2). In the meantime, he was released on bail (for $2 million) with the predictable plethora of conditions, including spending some time at Casa Palmera, an in-patient addiction treatment center here in San Diego. He does well there, so eventually gets released to home detention, and does well there too. At first he's only allowed to leave the house for 90 minutes for personal errands, but eventually they allow him to work full-time, which (again) goes well. He even eventually gets to spend three nights a week at his girlfriend's house. It's fairly clear that once he's off drugs, the guy's actually doing quite well, and things seem to be totally working.
But now he's convicted. So what sentence?
At this point, there's not much of an argument for incapacitation, since the guy doesn't seem to be much of a threat when he's off the sauce, and it seems like he's headed in very much the right direction, albeit with supervision. Deterrence -- either special or general -- seems a fairly weak rationale for slamming the guy as well, since people hopped up on DMT and 'shrooms are hardly thinking seriously about the consequences of their conduct nor likely to be affected by a contemporaneous thought about whether they'll be spending 5, 15, 30, or whatever years in prison as a result of their offense.
Retribution seems like the strongest argument for seriously punishing the guy. His crimes were serious. They could have resulted -- though did not -- in serious injury. You obviously can't just let the guy get off scot free. Retribution is a fairly lame rationale for extensive criminal punishment, but surely you've got to punish the guy in some way for the crimes, right? Even if we're fairly confident that he's totally unlikely to commit any similar offense in the future.
So what sentence do you give him?
The trial court gives him 33+ years in prison.
