Katie Aguilera

On October 31, 2016, Benjamin Cunha surrendered himself to a minimum security federal prison camp in California to serve a five-year sentence for arson on federal land.  It will be the second time he will serve a prison sentence for fires he started during the summers of 2005 through 2007.

Cunha, then a fire fighter, started numerous fires in grassy road side areas and hill side stands of oak trees in Amador and El Dorado counties over the course of those summers.  He was arrested in September 2007, and in March, 2008, after reaching an agreement with state prosecutors, Cunha pleaded guilty to two counts of arson.  As part of his plea deal, he agreed to give details to the Cal Fire investigators about the fires he started in exchange for transactional immunity from further prosecution.  He was given a six-year sentence by the state court for those fires in 2008.  Most of his sentence was suspended, and he served a full year in the El Dorado County jail and then five years on probation.  (Read here for more detail about Cunha’s story.)

After serving his sentence in state prison, Cunha returned to his community and set out to successfully fulfill his probation.  He moved on with his life, believing he had served his time and his past mistakes were behind him.  However, in the summer of 2013, after two suspicious fires started in the Amador/El Dorado area, Cunha became the prime suspect, and was arrested in August 2013.  No evidence has been put forward to connect Cunha with the two 2013 fires, and in the end, he was not charged for those.  Instead, federal prosecutors charged him with two counts of felony arson for fires he had started in 2006/2007 that had burned onto federal land.

In spite of the transactional immunity he had received from the state prosecutors in 2008, Cunha now faced federal charges for fires he had started six years before. The federal prosecutors argued that “the uncompelled grant of transactional immunity by the state prosecutors does not bind federal authorities.”

In February 2016, after agreeing to another deal with prosecutors to receive a shorter sentence, Cunha was sentenced to five years in federal prison, the federal mandatory minimum sentence for one count of arson.

US District Judge John A. Mendez, who presided over Cunha’s 2016 case, had the following to say about Cunha’s sentencing, according to court transcripts.

“My question for the government is, why did it take five years to indict this defendant?  I don’t understand this case in a lot of ways…

…neither the state court lawyers nor the judges anticipated any possible federal involvement in this [in 2008].  They let him talk, and for that you’re paying a price, Mr. Cunha.  But I didn’t see any explanation, when you already had a confession–and now we’re nine years almost, eight and a half years since he was arrested.

And he’s an individual that clearly has turned his life around, has become a productive member.  While you continually refer to him as a serial arsonist, he was eight years ago, and for that, the state prosecuted him.

But I saw no explanation…as to why it took five years for the United States to decide let’s indict this guy now.  It just seems out of the ordinary to me.  I know that there were two federal properties involved, but you knew that back in 2007.  You had a confession.  I don’t know how this got lost in the shuffle or why, after all those years, you decided he needed to be indicted.”

At a follow-up sentencing hearing, Judge Mendez said to Cunha, “I think this is an excessive penalty.  You do have a price to pay for what you did, and I completely understand that.  I think the state handled that, but the Federal Government disagreed.  And as a federal judge, I’m required to apply the law as it sits…You don’t deserve a five-year sentence.”

The sixth amendment to the US Constitution states that “in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial…”  Not a trial that takes place nearly nine years after the crime was committed, and admitted to, by the defendant.  Not a trial that takes place after the defendant has already served a sentence for and moved on from his crime, maintaining a productive and crime-free life ever since.

Judge Mendez said at Cunha’s sentencing, “I’m not saying you [federal prosecutors] didn’t have a right to bring the case, but to bring it nine years, or eight and a half years, after the fact concerns me.”

Cunha now faces five years in a minimum security prison camp where he spends his weekdays at an E waste recycling facility dismantling and sorting electronics.  He describes the camp as an old air force base that has no fences and the door is never locked.  He says he is free to go outside whenever he pleases, and that he leaves the camp and walks to the E waste recycling facility along a public road to work Monday through Friday.  Cunha points out that he could be doing the same thing on house arrest, actually working, paying taxes, and supporting his family.

This is an interesting point to consider.  The California Legislature’s non-partisan fiscal and policy advisor, the Legislative Analyst’s Office, estimates it costs an average of $71,000.00 a year to incarcerate an inmate in California.  Of course that figure would vary based on the security level and location of prisons, health and age of an inmate, etc, but that is no small sum.  How many inmates are serving a sentence due to indiscriminate mandatory minimum sentences in facilities like the one Cunha is in at the expense of taxpayers, and at the expense of the families that are pulled apart by such incarceration?  At what cost does this apparent need for what is perceived to be suitable, one-size-fits-all punishment come to our society?