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Life WIthout Parole for Possession of an Ounce of Marijuana after Prior Felony Conviction

2016-04-15

That’s correct: according to the New York Times, the law in Mississippi states that the mandatory penalty for possession of an ounce of marijuana is life without parole if you have had prior felony convictions.  Alabama has a law that is only slightly less draconian, as I will describe in a moment.  Two other states have no penalty at all for possession of marijuana (that is, they have legalized “recreational use” of marijuana).  According to federal law, marijuana is a “Schedule I” substance, that is, it has no recognized medical use and represents a danger to its users (precisely what that danger is may be somewhat vague) that is unacceptable.

The Department of Justice has promulgated a memorandum on this subject which appears to suggest that the federal government’s “priorities” are not served by prosecution of individuals for the mere possession of “small amounts” of marijuana.  This memorandum is deliberately vague and insists that it does not provide anyone with any defense against being prosecuted, but it does set forward certain specific “priorities” that are intended to guide federal prosecutors when deciding whether to prosecute individual cases.  The priorities include “preventing the distribution of marijuana to minors” (the first priority mentioned) and “preventing revenue… from going to criminal enterprises” as well as “preventing drugged driving” among a number of other issues that are plainly of concern to the federal government.

Regardless of the deliberate vagueness of this memorandum, it appears that the federal government’s priorities do not include prosecution of individual possession or use of marijuana. Federal prosecutors have gone after a number of businesses that distribute marijuana, most commonly by threatening the owners of the property on which it is sold.  Prosecutors have also attacked large distributors directly, frequently by disrupting the financial basis of their businesses.  However, there have not been any federal prosecutions of individual users that I am aware of in some years.

States are extremely variable in their attitude with regards to marijuana use.  For example, in Alabama, there is a case that is headed for the federal Supreme Court that was featured on the editorial pages of the New York Times:

There is a 75 year old man in Alabama who is appealing his sentence to the US Supreme Court because the Alabama State Supreme Court upheld his life without parole sentence for possessing 2.8 pounds of raw marijuana that he grew himself (stems, leaves, and all.)  He was convicted of armed robbery twenty years ago and served ten years in prison.  For that prior conviction, he now is in an Alabama prison for life without parole for growing a weed.  His lawyer is appealing on the grounds that his sentence violates the Eighth Amendment to the US Constitution, which prohibits cruel and unusual punishments.

It certainly does seem cruel and unusual to sentence someone to life without parole for possession of marijuana without even having any evidence that he intended to sell the stuff.  In fact, the trial judge stated that he would not have passed this sentence except that it was mandatory under the law.  The state Supreme Court also was reluctant and the chief justice wrote that the sentence was “excessive and unjustified” but he failed to make the logical conclusion that the sentence was cruel and unusual.  This is the conclusion that the defendant’s lawyers wish the federal Supreme Court to reach.

It is clear that even the Alabama Supreme Court lacks the mental ability to make obvious conclusions about its own excessive and unjustified laws.  The prosecutors are the ones who are most responsible for the absurdly overstuffed prisons in Alabama, but the judges there are elected from prosecutors and they too are complicit in this denial of human rights.

The New York Times (NYT) was so agitated by this sentence that it published an editorial about the case.  For the NYT to write an editorial about it, there must have been a notice that it was being appealed to the Supreme Court; further, the NYT must have found the case to be remarkable.  Finally, they found the statements of the judge in the trial and the statements of the Alabama Supreme Court justices to be remarkable.

Today, the federal Supreme Court will consider whether to hear the appeal of this man’s life without parole sentence for possession of 2.8 pounds of marijuana plants, stems, leaves, and roots.  By the way, the man was apprehended by police who claimed to be searching for stolen bicycles.  They didn’t have a warrant, but they did have the “written” permission of the man’s absent son to perform the search– over the man’s objections in person.  There is a definite argument in this case whether the police even performed a legal search.

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