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Life without parole for marijuana possession??
Also: Are elephants people?
Welcome to Unprecedented. Happy Monday! Here’s what’s been going on in our nation’s courts over the past few days.
In America, you can be sentenced to life in prison for possession of marijuana.
Nineteen states have made marijuana legal. In Washington, D.C., adults are allowed to have two ounces of weed at any one time — and this month the city council unanimously voted to prohibit employers from punishing employees who test positive for marijuana. Two months ago, the House of Representatives passed a bill decriminalizing marijuana.1
Meanwhile in Mississippi, Allen Russell is serving life without the possibility of parole because the cops caught him with some marijuana in his pocket. Mr. Russell appealed to the state’s highest court, arguing the punishment violated the Eighth Amendment’s prohibition against cruel and unusual punishment. Last week, the Supreme Court of Mississippi upheld his sentence.
Welcome to America, where rehabilitation is less important than making an example of someone.2
Of course, no one gets sentenced to life in prison just for possession of marijuana. Not even in Mississippi. Usually when you hear about a case like this, it’s a product of so-called “three strikes” laws, meant to keep habitual offenders off the streets. The basic premise is simple: If you’ve been previously convicted of a violent crime or another felony, you need to stay out of trouble for the rest of your life. Anything — from forging a check, to taking a tool from someone’s shed — can trigger the punishment, inspired by the rules of baseball: three strikes and you’re out.3
Mr. Russell ran afoul of Mississippi’s incarnation of the three strikes law, which requires a life sentence without parole if you’ve already served at least a year in prison on two separate felonies (at least one of which was “violent”). Mr. Russell had served jail time for two home burglaries4 in 2004, and for unlawful possession of a firearm in 2015.
A few years later, the police found him with less than three ounces of a leafy green substance in his pocket. In Mississippi, an ounce of marijuana can get you up to three years in prison. But because of Mr. Russell’s history, he was sentenced to life in prison without the possibility of parole.
On Thursday the state Supreme Court upheld the sentence, noting that the trial judge just followed what the law law required him to do. And the court saw no real reason to re-examine the constitutionality of three strikes laws, for the U.S. Supreme Court has already deemed them kosher.
How can a life sentence for marijuana be constitutional?
The Eighth Amendment to the U.S. Constitution prohibits “cruel and unusual punishments” — which the Supreme Court has explained includes criminal penalties that are “grossly disproportionate” to the crime. So how on earth is a life sentence not an overreaction to the innocuous misdeed of marijuana possession? Because “grossly disproportionate” means the punishment needs to be outrageously out of proportion to the crime. Think: death penalty for an expired parking meter.
Admittedly, the Supreme Court hasn’t given much guidance to lower courts about when, exactly, the “grossly disproportionate” threshold has been met. We can all agree that the death penalty would be an unreasonable punishment for the crime of marijuana possession. But life in prison? For someone who has committed multiple crimes, some of them serious, over a period of years? And that last crime was relatively minor in the grand scheme of things? You might not think that’s fair. I might not think that’s fair. But the only people whose opinions count in these matters are the state legislators. And if they want to exile “one who is simply unable to bring his conduct within the social norms prescribed by the criminal law of the State,” as the Supreme Court has put it, the Constitution won’t stop them.
As the state’s Chief Justice explained in a concurring opinion: “Russell has received a harsh punishment not because he possessed a small amount of marijuana, but because he has repeatedly refused to abide by the laws enacted to protect all the citizens of our state.”
One more thing…
Mr. Russell is not a saint. Before you head down to Jackson with picket sign in hand, ready to protest the injustice of three strikes laws, consider the chain of events that led to Mr. Russell’s arrest for marijuana possession:
Police were summoned to a hotel after someone noticed a dead man in the next room. They arrived to find a body with multiple gunshot wounds to the head. Surveillance footage placed Mr. Russell at the scene, dropping a pistol as he fled from the room in the middle of the night.
Police got a search warrant for Mr. Russell’s residence; he refused to let them in. Police broke through the windows, entered the apartment, and gassed Mr. Russell from his hiding spot in the attic. Upon examining his clothes, they found gunshot residue.
They also found a few baggies of marijuana.
Mr. Russell was initially charged with possession of marijuana with intent to distribute. During his initial court appearance, a murder charge was added. After a four-day trial, a jury quickly convicted him of murder. In April, a judge sentenced him to life in prison. Again.
So, did Mississippi’s three strikes laws work? A violent man is off the streets. The public is safe. Perhaps, had officers realized Mr. Russell was a joint-smoking scoundrel before that fateful night in the Hattiesburg Deluxe Inn, a life might have been saved?
As the Chief Justice wrote in his concurrence:
Russell was given numerous chances, yet he squandered every one. Russell, through his own actions, has evinced incorrigibility, despite multiple opportunities to reform his criminal ways, showing no evidence of remorse, and exhibiting no evidence of rehabilitation. ... Russell has shown a propensity for multiple years to commit crimes and to violate the rights of his fellow man and the laws of our state and nation. Prior attempts to deter and reform him have failed. Multiple shorter incarceration periods have failed to dissuade Russell. The Legislature declared life imprisonment is necessary to protect society.
So, unless Governor Tate Reeves or President Joe Biden sees fit to offer him clemency, Mr. Russell is gone from civilized society for good. But given the multiple gunshot wounds to the head, clemency is… unlikely.
ELSEWHERE IN AMERICA
Elephants aren’t people. And yet...
Of course they’re not. But an animal advocacy group asked New York’s highest court to free “Happy,” an Asian elephant living in the Bronx Zoo for the past four decades, so that they could send her to an elephant sanctuary.
A principle in the law called habeas corpus — literally “show me the body” — is often used to challenge the legality of a person’s imprisonment. The Nonhuman Rights Project, which tries to secure fundamental rights for some nonhuman animals, tried to use that doctrine on behalf of Happy. The lower courts threw out the case before even getting to the merits — and the state’s highest court agreed. “While no one disputes that elephants are intelligent beings deserving of proper care and compassion,” the court wrote, “the courts below properly granted the motion to dismiss.”
Here’s where it gets interesting: The decision was 5-2 — meaning two of the state’s highest judges believed the elephant might be entitled to some fundamental rights previously reserved for humans. Or, at least, she deserved the chance to argue her case.
“The rights we confer on others define who we are as a society.” — Judge Rowan Wilson
Judge Rowan Wilson wrote a fascinating and thought-provoking dissent, arguing that the courts should at least contemplate the question. “As with our society’s changed understanding of the rights of enslaved persons, women and children, our understanding of the cognitive and emotional makeup, needs and capabilities of elephants is far different than it was in bygone times.”
Judge Wilson isn’t necessarily saying that Happy should be released; simply that the courts should genuinely consider the motion, rather than dismiss it out of hand. Doesn’t Happy’s interest in being free in an elephant sanctuary outweigh the interest of the public to be able to gawk at Happy in captivity? Shouldn’t we at least take the time to ponder the question, rather than laugh Happy out of court?
“We should recognize Happy’s right to petition for her liberty not just because she is a wild animal who is not meant to be caged and displayed, but because the rights we confer on others define who we are as a society,” Judge Wilson wrote. “When the majority answers, “No, animals cannot have rights,” I worry for that animal, but I worry even more greatly about how that answer denies and denigrates the human capacity for understanding, empathy and compassion.”
The Nonhuman Rights Project promises that the the “national and global struggle for nonhuman animal rights” has “only just begun.”
Speaking of animal rights...
If your dog attacks a police dog while it’s chasing a fleeing suspect through your yard — grabbing onto the police dog’s snout for several seconds, for instance, thrashing back and forth in an apparent attempt to tear its face apart — the officer can kill your dog. “Shooting a pet, while always unfortunate, is not always unreasonable,” the Sixth Circuit Court of Appeals wrote in vindicating the police officer.
“Free speech” doesn’t mean protesters can picket wherever they want.
The 2019 Democratic primary debate in Detroit drew protesters of all ideological stripes, and the Detroit Police Department restricted where the protesters could stand, even dividing them into “right-leaning” and “left-leaning” camps and preventing them from mingling. That’s totally okay, and not a violation of the First Amendment, since the police weren’t favoring any particular group, but rather treating them all like vaguely distasteful party-crashers.
“Permitting the groups to commingle could have produced an outbreak of violence, as had occurred at many similar rallies throughout the United States in the years and months leading up to the Democratic debates,” the Sixth Circuit wrote.
Grandparents have rights! Sort of.
Did you know that every state in the country has a form of “grandparents’ visitation” rights, giving grandparents the legal right to see the grandkids as long as they can prove they have a strong relationship with them? That said, the Supreme Court has held that parents’ wishes generally come before grandparents’ wishes — and sometimes it’s hard for grandparents to invoke their rights.
In Maine, the bar is incredibly high: a grandparent has to prove that she is a “de facto parent” to the children. Last week Maine’s high court ruled that even though one grandmother said she cared for her grandchildren nearly every day, that wasn’t enough to challenge her daughter-in-law’s decision to abruptly cease all contact with the children.
And that’s the Schwartz Report! We’ll be back in a day or two. If you’ve enjoyed this newsletter, please leave a comment, forward it to a friend, click that little heart button on the website, and share it far and wide.
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Matthew S. Schwartz
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You could argue that three strikes laws are meant to deter other would-be career criminals; many of their proponents say that these laws are simply about protecting public safety by keeping bad guys off the streets.
Interestingly, a Google search for that phrase brings you not the rules of the game, but a breakdown of the nation’s habitual offender laws. “Three strikes” has become more synonymous with American punishment than with America’s pastime.
In Mississippi, burglary has been classified as a violent offense since 2014, whether or not the prosecution prove that violence occurred. This was not the case when Mr. Russell was convicted.