Cruel and Unusual Sentencing.

The Courts still don't understand the Eighth Amendment. It is not primarily about how painful executions feel. It is about disproportionate punishments. Afraid of exercising good judgment, the 8th Circuit Court of Appeals in a 2-1 decision, held that an 8 year sentence for possession of less than 2 ounces of marijuana (less than about $400 worth and less than about 8 joints, for those of you unfamiliar with the drug culture), is legitimate. This is particularly egregious because there were mitigating factors in this case. The defendant cooperated with police and the undisputed facts were that the pot was intended to ease the suffering of a friend who had M.S., a degenerative nerve disease: That isn't a legal defense, but is an appropriate matter to consider at sentencing, particular now that the Sentencing Guidelines are not binding on trial court judges. By comparison, the average time served for a homicide conviction in the United States is seven years. The offense in question should be the subject of a fine and a short term in a county jail, not eight years in prison.

And, what were the aggravating prior convictions that justified such an incredible sentence in this case: involuntary manslaughter, which arose out of a drunk driving car accident in 1990 (which was classified as a "crime of violence"), and selling one-quarter ounce of marijuana for fifty dollars in 1998 (which was classified as "drug trafficing"). These hardly reflect someone who is a hardened criminal. There were also prior DUI convictions, a failure to appear citation, and a probation violation, which were (and apparently could not be) not considered in the sentencing.

In the absence of the prior convictions, he would have received six to twelve months in jail. Thus, he received eight to tens times as great a sentence because of his criminal history. A co-defendant without the same criminal history was sentenced to two years probation. At the time the sentence was intially handed down, it was mandated by the Sentencing Guidelines and the judge couldn't deviate from them and handed down the lowest possible sentence. But, the appeallate court majority held (not very convincingly) that the judge wouldn't have ruled differently in the absence of the sentencing guidelines.

This isn't the first case where the courts have bungled it on the 8th Amendment by any means. (I am resisting the urge to list all of them in this post, but the majority opinion contains a nice list of the most egregious cases). It does temper the optimism I expressed about the drug war yesterday a little, however.