26 August 2005

Cruel and Unusual Sentencing II.

This is a follow up to my post on the fellow who was sentenced to 100 months in prison for selling less than two ounces of pot, mostly due to a prior criminal history. U.S. v. Chauncey (8th Cir. 2005).

Here are a parade of horribles cited by the majority in that case on recidivist sentencing, all of which I think were wrongly decided:

* 25 years to life for the theft of three golf clubs, Ewing v. California, 538 U.S. 11 (2003)
* life without parole for possession of 650 grams of cocaine, Harmelin v. Michigan, 501 U.S. 957 (1991)
* life without possibility of parole for twelve years for obtaining $120.75 by false pretenses, Rummell v. Estelle, 445 U.S. 263 (1980)

But see:

* life without parole for passing a $100 "no account" check in a case involving a non-violent recidivist is unconstitutional, Solem v. Helm, 463 U.S. 277 (1983)

I think that there are some principles of proportionality in these kinds of cases that would lead to more just results:

(1) Less than a majority of a sentence for a new crime should be solely a consequence of prior crimes. If your prior crimes can be more important than your current crime at sentencing, then the current crime doesn't even really matter for purposes of the constitutional link between the sentence and the crime. This would have capped the sentence in the Chauncy case to two years, which would have been far less egregious, and would similarly have dramatically reduced the sentences all of the other cases cited above. Receiving double the maximum sentence that a non-recidivist offender could have received is not unreasonable.

(2) Crimes with reduced intent levels, like involuntary manslaughter, should not be considered for purposes of sentence enhancement. This would have reduced the sentence in the Chauncy case to twelve months. Still stiff for possession of less than two ounces marijuana intended for someone with M.S., but not draconian.

This isn't the whole story. Congress has made a fundamentally mistaken policy judgment in assigning a ten year maximum sentence for pot dealers. But, these two principles could make a material difference in the quality of justice in the United States, and it would restore some meaning to the 8th Amendment.

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