When We Throw Away the Key (and the 8th Amendment).
Mandatory minimum sentences have proven to be a disaster in the United States, resulting in an overburdened prison system and the highest level of incarceration on the planet. The scheme is a knee jerk reaction to the crack cocaine epidemic of the late 1980’s, under which it appears that any consideration of proportionality of crime to sentencing was disregarded. As a result, even non-violent drug offenses can result in life-sentences that can amount to cruel and unusual punishment and thus a violation of our rights under the Eighth Amendment.
The Eighth Amendment states that “excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Therefore, if someone is sentenced to jail for what may be an undue amount of time, they should invoke their Eighth Amendment rights and look to prior Supreme Court decisions for guidance on what amounts to cruel and unusual punishment.
Many cases dealing Eighth Amendment jurisprudence have looked to Weems v. U.S. Fortunately, unlike in Weems , we in the United States and its territories are no longer faced with sentences that include ‘hard and painful labor’ for crimes such as the falsification of public documents. Such sentences have come to be viewed as ‘repugnant’ to the Bill of Rights. In Trop v. Dulles , Chief Justice Warren, looking back on such sentencing practices, acknowledged the dynamic and fluid nature of the Eighth Amendment and how we… “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” Also, in Gregg v. Georgiathe Court acknowledged that “an assessment of contemporary values concerning the infliction of a challenged sanction is relevant to the application of the Eighth Amendment. …It requires, rather, that we look to objective indicia that reflect the public attitude toward a given sanction.”
In 1993, the Supreme Court further illustrated an Eighth Amendment sentencing violation using a proportionality analysis in Solem v. Helm , in which, under a state recidivist statute, the defendant, based on prior convictions, was faced with a life sentence for writing a fraudulent check for $100. The Court’s proportionality analysis was: “(i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed…in the same jurisdiction…whether more serious crimes are subject to the same penalty or to less serious penalties; and (iii) the sentences imposed…in other jurisdictions.” The court appropriately concluded that the life sentence was significantly disproportionate to the less serious crime of check fraud.
Based on the analyses above, we might conclude that federal sentences of life imprisonment without parole for non-violent marijuana charges amount to cruel and unusual punishment because they are: 1) unevolved and out of date, as this equates to a modern day version of hard and painful labor; 2) contrary to public opinion, as 58% of the U.S. population supports the legalization of marijuana; and 3) shockingly disproportionate, in consideration of the gravity of the crime and the harm caused, as well as the decriminalization of marijuana in multiple states.
However, the Supreme Court has more resolutely emphasized its deference for rules as legislated. While the separation of powers is a fundamental aspect of U.S. democracy, it must be acknowledged that some sentencing and recidivist programs were enacted hastily and came about due to outrageous and politically charged circumstances. Many scenarios of disproportion have been the result. A law that automatically upgrades a non-violent crime into a life sentence bastardizes the proportionality aspect of our justice system and thus creates a system that not only fosters violations of our Eighth Amendment, but makes them the norm. Under such circumstances, judicial restraint undermines democracy and corrupts justice.
Accordingly, judges in lower state and federal district courts are forced to operate under an unconstitutional regime and hand out sentences with which they may completely disagree. Paul Cassell a retired federal court judge discussed his dismay over a 55 year sentence he imposed for marijuana trafficking. “If he had been an aircraft hijacker, he would have gotten 24 years in prison…a terrorist…20 years…a child rapist…11 years…. And now I’m supposed to give him a 55-year sentence? …that’s just not right.” This is not only destroying families, but forcing judges to engage in deeply regrettable activity throughout their careers.
The case of State of Missouri vsJeff Mizanskeyillustrates of the type of reform that is imperative at the federal level to avoid further violations of our Constitution. Mizanskey was the only inmate in Missouri serving a life sentence for non-violent marijuana trafficking. Evolving standards of decency emerged within the state, detectable in the fact that the law had been reformed to no longer require life sentences in such matters. This progress, combined with a governor who took interest in the disproportion, freed Mizanskey from his unconstitutional nightmare. While this type of reform is occurring at the state level and should attest to the maturing of our society as called for in Trop, the federal level continues to follow guidelines that defy the Eighth Amendment.
Fortunately, there are great signs of hope as of late. Economically, the penal system is starting to recognize that the costs of imprisoning someone for life for a low-level offense is not advantageous. Also, in 2015 emerged the Holloway doctrine, which provides district courts with the discretion to reduce federal sentences that are disproportionately severe, yet technically correct. Additionally, there has been firm acknowledgement from the Supreme Court with respect to the relationship of disproportionality and the Eighth Amendment. Their recent decision Montgomery v. Louisiana , promotes the concept of evolving standards of decency and the notion that mandatory life sentences can indeed be disproportionate in some instances, and in those instances should be viewed as cruel and unusual punishment. If you or someone you know is incarcerated or facing what you might seem like a disproportionate amount of time for a non-violent drug offense, these developments might offer some hope. Invoke your constitutional rights.
Rhett Frazier. 7/31/17