Reader Ken sent me this article from the Associated Press (click on screenshot) which shows how brutally insensitive the prison system is in America—at least in Mississippi and other “three strikes” states. Those are states in which, if you’re convicted of three successive felonies (one of which in Mississippi must be a “violent offense”), they lock you up for life and throw away the key. You’ll leave prison only in a box. You cannot get probation, and the governor cannot parole you.
It recounts the story of Allen Russell, aged 38, who received his third felony conviction for possessing between 44 and 80 grams of marijuana—more than 30 grams, an ounce—is a felony). Before that, Russell served 8 years for two home burglaries and was released from prison in 2014. This was not a violent offense, though now all burglaries are considered “violent offenses.”. Then felony #2: Russell was found in possession of a weapon as a convicted felon. For that he served two years.
Finally, on November 29, 2017, Russell was arrested for carrying somewhere between 44 and 80 grams of marijuana, which is a felony since the amount exceeded 30 grams.
Under state law, Russell was then sentenced, after the third “strike”, to life in prison without possibility of parole. He appealed the sentence, saying that it was “cruel and unusual punishment and is grossly disproportionate” to possessing a smallish amount of marijuana.
But in their opinion, which you can find here, the court appears to have been split 4-3), they majority said that he wasn’t being sentenced for the marijuana alone, but because he was a “habitutal offender,” and thus subject to Mississippi law, which remains in force.
Here’s a bit of the majority opinion (my emphasis):
The jury convicted Russell of possession of marijuana in an amount greater than 30 grams but less than 250 grams. During the sentencing hearing, the State presented evidence of Russell’s prior felony convictions. In April 2004, Russell pled guilty to two separate charges of burglary of a dwelling and received two concurrent fifteen-year sentences in MDOC’s custody. The State presented evidence that Russell served eight years, seven months, and three days on each charge for burglary of a dwelling before being released from prison in February 2014. In October 2015, Russell then pled guilty to possession of a weapon by a convicted felon and received a ten-year sentence in MDOC’s custody, with two years to serve, eight years suspended, and five years of post-release supervision. Based on the State’s proof of Russell’s two prior felony convictions, the circuit court found Russell to be a violent habitual offender and sentenced him to life imprisonment without eligibility for probation or parole. Russell unsuccessfully moved for a new trial or, alternatively, a judgment notwithstanding the verdict. Aggrieved, Russell appeals.
Now in what world should a 38 year old man be locked up for life for two burglaries committed at the same time, possession of an illegal firearm, and a smallish amount of marijuana? Is there no possibility of rehabilitation? It’s not like Russell committed three murders, rapes, or armed robberies. He burgled two houses without violence, had possession of an illegal firearm that he didn’t use in another instance, and then was found with a few bags of marijuana. For that he deserves to rot in jail forever?
From the minority opinion:
The purpose of the criminal justice system is to punish those who break the law, deter them from making similar mistakes, and give them the opportunity to become productive members of society. The fact that judges are not routinely given the ability to exercise discretion in sentencing all habitual offenders is completely at odds with this goal. Additionally, “[t]he discharge of judicial duties requires consideration, deliberation[,] and thoughtful use of the broad discretion given judges under the laws of this State.” White v. State, 742 So. 2d 1126, 1137 (¶44) (Miss. 1999). In instances such as these, the duty of the judiciary, as an independent branch of government, is frustrated because courts are not allowed to take the facts and circumstances surrounding a habitual offender’s prior offenses into account at sentencing. In cases like Russell’s any discretion really lies with the prosecution rather than the judiciary. Once an offender is charged and convicted as a habitual offender, courts have no option but to “rubber stamp” the decision by sentencing an 20 offender under section 99-19-83 instead ofsection 99-19-81.10 In fact, situations like the one currently before us are a prime example of why many people have called for criminal justice reform with regard to sentencing.
I’m not sure how many states have a “three-strikes-you’re-out” policy, but even one is too many.
The US has 4% of the world’s population and 22% of the world’s prisoners. It has an incarceration rate of 639 per 100,000 whereas that for Canada is 104. And it costs $33,000 per prisoner per year to jail them.
Canada also doesn’t have the vast inner cities that US has so it’s not a simple comparison.
Japan has fairly large cities and their rate is 38 per 100,000. The US is way out of line compared to the rest of the developed world.
I agree that the US is out of line (prison reform is one of my biggest issues), but it’s really hard to compare a country like the US to Japan. Japan has an extremely conformist culture that reduces crime significantly. Interestingly, Japan’s conviction rate is nearly 100% in criminal trials, and people taken into custody are denied a lot of the rights we consider basic and take for granted (like the right to a lawyer during questioning). Here’s an interesting article on the topic: https://www.nippon.com/en/japan-topics/c05401/order-in-the-court-explaining-japan%E2%80%99s-99-9-conviction-rate.html
Somehow, the phrase “vast inner city” is not one I associate with the noun “Missississississippi (sorry – it’s like “bananana” – easy to start spelling, harder to know when to stop).
One question to apply is, of course, cui bono (“who benefits”). Someone, somewhere is probably profiting, and it is almost certainly not the tax payer.
Most Canadians live in large cities.
https://www.indexmundi.com/factbook/compare/canada.united-states/demographics
Urbanization
Canada:
urban population: 81.6% of total population (2020)
rate of urbanization: 0.97% annual rate of change (2015-20 est.)
United States:
urban population: 82.7% of total population (2020)
rate of urbanization: 0.95% annual rate of change (2015-20 est.)
Is there any research that shows inner cities have proportionally more crime than rural area once you correct for population density?
I was about to ask the cost!
Perhaps we should just put a big fence around the whole US to stop them burgling the rest of the world! 🤭
Trumpeter!
Wasn’t that underway before the election was stolen
The most recent stats I’ve seen for California say that the total cost per prisoner per annum is about $82k — which, last time I visited, was enough to keep you in a bungalow at the Chateau Marmont on Hollywood Boulevard for the better part of a year.
On Hollywood’s Sunset Boulevard, I meant to say, of course.
Comparison figures for UK – year 2019:-
England & Wales – 137.9.
Scotland – 146.
Let us be more honest with ourselves and admit that there is no justice in our justice system, only retribution.
Yes, although even that description might be too generous to the US and Mississippi “justice” systems. Prosecutorial discretion often determines whether the third crime is charged as a felony. Which just opens the door wider for “those people” (poor, black, or whomever else is out of favor) to be treated worse than “we” are.
I saw where there is a big thing going on in Texas because a black man is about to receive the death penalty. Texas is the capital of death you know. The justice system in total is a huge mess in this country, no surprise to anyone really. The current popularity of the republicans with all the removal of voter rights can be laid right at the feet of our Supreme Court man Roberts. He is responsible for killing the voter rights that we had going back to 1964. Really find job Roberts.
A question from someone who is not that familiar with the US legal system:
Could Congress (if it wanted to) pass a law to mandate a different sentencing policy throughout the US? Or can individual States carry on with a ‘three strikes’ policy regardless?
I don’t think the Federal Government could override the states’ laws unless the Supreme Court were to find it unconstitutional.
One of the great faults in the American system is the power of the states. For all state crimes they pretty much do whatever they want, from three strikes to the death penalty, you name it. Congress has no power over the individual power of the state on anything. The Constitution was established with this terrible compromise back in 1787 and it has never been fixed. This is also where they established the one vote for each state regarding the Senate, which has made it a useless institution in many ways.
I agree with amounts made about State rights and the powers of the States in so far as I a non American understand them. I do however think the problems go deeper at least where the justice system is concerned. Prosecutors and judges are, for the most part, elected and in order to get re-elected they must be seen to be carrying out the wishes of the electorate. It seems to me that that electorate is frequently vengeful and bloodthirsty. This is not wholly surprising. Polls carried out in the UK as regards restoration of the death penalty often show a majority in favour, particularly where a poll has been run of campaigned for by Tabloids such as the Sun or the Daily Fail. On the other hand any canvassing of MPs shows that a motion for restoration would be unlikely to find favour with more than 15% of MPs. The difference however is that the electorate can far more easily impose its will on the State legislature than can the electorate on the UK Parliament.. The United States is right to price itself on its attainment of democracy but I think sometimes it has a surfeit of democracy and this empowers and emboldens the lowest common denominator.
Sorry about careless typos, the edit button has disappeared.. The corrections are pretty obvious.
The 14th Amendment gave the Federal Government the power to overrule state laws if such laws could be shown to violate the basic rights guaranteed in the Constitution. So, states can’t legalize slavery, for example, or impose religious requirements on its residents.
In this case it could be argued that this prison sentence violates basic constitutional rights. It would undoubtedly need to go to the Supreme Court for a final verdict.
I think I mentioned earlier this Supreme Court a few years back took away federal protection for voter rights so I wouldn’t think they give a damn about this guy’s jail time. The states have the power on our education, on our voting, on most of our justice. People are generally wrong to think the Federal govt. is going to protect them against the state. The reason they went to that meeting back in 1787 was primarily because the states were running a govt. that was a joke. They all sang their own song. The Convention did not change that so much and not nearly as much as some wanted. We call it compromise but it left us with a mess. Just as an example, look what the clowns down in Arizona are doing now with the election we had 6 months ago. If the state of New York should happen to indict Trump, which may just happen, there is talk that the govt. of Florida might just step in and refuse extradition.
Thanks chaps.
Apparently, even in Florida – not the most progressive state in the Union, to say the least – the rule is 10-20-life (though the latter sentence really is “25 to life”), but the only offenses included in this rule are more or less truly violent ones, including: Robbery, Assault, Aggravated child abuse, Kidnapping, and Murder. So, it’s a LITTLE bit more sensible, since these are not minor felonies,.
But there is mandatory sentencing for many non-violent drug-related offenses nevertheless, and possession of above a certain amount (arbitrarily chosen) of a given drug leads to a charge automatically being elevated to “trafficking” rather than possession, even if no known instance of dealing drugs is seen or claimed. And the openly, legally stated purpose of imprisonment in Florida is retributive, not rehabilitative, according to a defense attorney with whom I once became acquainted. There is also no parole in Florida, though there is “gain time” for good behavior…no more than 15% of the total sentence can be taken off.
Mandatory sentencing schemes ineluctably lead to gross miscarriages of justice. Full stop.
And this instance is among the worst — a cat getting a so-called “living death” sentence for possessing something less than two ounces of weed, a plant substance the federal government appears to be on the cusp of decriminalizing.
My quick perusal of the Mississippi Court of Appeals’ opinion suggests that Mr. Russell may have a colorable petition to present to SCOTUS under the US constitution’s Ex Post Facto Clause, given that burglary was not classified as per se “violent felony” in Mississippi at the time of his prior convictions (or under the 8th Amendment prohibition on “cruel and unusual punishments,” although the Court’s current six-justice conservative majority seems unlikely to be predisposed to reviewing the “proportionality” of sentences limited to terms of incarceration).
That’s an interesting phrase, particularly in respect of Mississippi’s history.
What’s Mississippi’s state nick name, “the Burning state”?
This Russell appears a bad egg, and I have little sympathy for burglars, but life without parole? These guys are nuts. Completely, profoundly and exquisitly nuts. Who designed these laws?
This one was passed by the Mississippi legislature and signed into law by its governor, but such laws are widespread throughout the laws of other jurisdictions, including the US federal criminal code. Such statutes gained popularity during the crack-cocaine epidemic beginning in the 1980s, and some of them were enacted in the 1990s during the Clinton administration, back when Bubba was intent to show that he wouldn’t be outflanked by Republicans in being “tough on crime.”
Uncle Joe helped push some of them through the US senate in those days, so he has sins of his own to expiate by seeking repeal of these statutes and through the prudent exercise of his pardon power.
“…so he has sins of his own to expiate…through the prudent exercise of his pardon power.”
I would love to see this Presidency undertake an enormous project of finding the most unjustly imprisoned people throughout the country and performing pardons for all of them. That would be a truly humanistic and unique accomplishment.
I agree, but keep in mind that a President’s clemency power is limited federal criminal convictions. State convictions fall within the pardon power of governors or state clemency boards.
Only about 10% of prisoners in the US are marking federal time.
Yes, but that’s still a lot of prisoners, and I’m sure there’s plenty of opportunity for clemency in there. Actually, I should be talking more about commutations than pardons. I’d like to see a lot of life sentences reduced and other actions of that nature.
II second carbon Copy’s proposal. If the Federal government ideally succeeded even in 10% of the cases, I wonder if it could perhaps influence at least some State governers favorably in that direction. Others might follow the initiative.
.-
They weren’t too kind regarding Minors.
Thx counsellor – I was going to make some of those points myself!
D.A., J.D.
NYC
Absurd.
Orwellian even, considering no actual violence against people was committed in any of this “violent habitual offenders” convicted crimes.
Prison reform is one of my biggest concerns, but it doesn’t seem like there’s much of a movement in this country to change things. Things like this should never, ever happen. I’m even more concerned with how prisoners are treated once incarcerated. There is so much work to be done, but almost nobody is trying to do it. It’s shameful. It destroys people, families, and communities. It needs to stop.
Can he argue the “cruel and unusual punishment” claim at the Supreme Court, or has that avenue been unsuccessful in similar cases? I seem to recall that one of the first “three strikes” cases involved a dude whose third felony was stealing a slice of pizza from some partygoers on a beach.
Whether the 8th Amendment’s prohibition on cruel and unusual punishments authorizes the reversal of a term of imprisonment that is disproportionate to the crime has not been conclusively resolved by SCOTUS. Conservative justices generally tend to oppose to that view, see Harmelin v. Michigan, and conservatives currently outnumber the liberal wing, six to three.
As for SCOTUS and three-strikes laws, see Ewing v. California.
None of which is encouraging.
Thanks, Ken – informative, as always!
What a ridiculous, scandalous, obscene waste of taxpayers’ money. How on earth do the right-wingers square this circle?
Some of the right-wingers are clearly profiting from the arrangement. “Profit” being the cure-all in American society.
Australia has 89% of the population living in cities. The average per 100,000 rate is about 200 for the main states with mine, Victoria being 134.
The harshness and pettiness of the US non justice system has always been noticeable to me. I doubt any of the people in jail in Australia would have received as harsh a sentence, for anything, as someone from the land of the free.
I have noticed for years how readily the phrase “You are going to jail” is used. Not You will be charged or you will be going to court, but , “You are going to jail”.
Pursuit of happiness in the land of the free seems fraught with danger.
I put it down to Puritan beginnings and the pervasive influence of religion.
Religion poisons everything.
I couldn’t read the decision. Too depressing and I’ve read too many like it.
The War on Drugs (and its disparities) was partly the reason why I practiced criminal defense law here in NYC. And a big part of the reason I retired from it. Our retributive “War on Citizens” is our stupidest decision as a nation in a century. After that, mandatory minimums – a terrible and unjust idea.
D.A., J.D.
NYC
They really are stupid in Mississippi. An ounce of marijuana is 28 grams, not 30 grams.
Once upon a time, I was thinking of having bumper stickers made up that said “If your child understands the metric system, thank a drug dealer.” 🙂