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October 20, 2006

Intriguing Louisiana heroin lifer litigation

In my periodic rants about the excessive attention given to the death penalty (highlights here and here), I often assert there are far greater injustices in our criminal justice system than what we see in the (over-analyzed) death penalty system.  In particular, I fear that many injustices surround many life sentences which are not even known, let alone the subject of sustained advocacy.

I find support for my perspective from stories like this piece from the Drug War Chronicle about litigation over life sentences for heroin offenses in Louisiana.  Here are details:

In the midst of 1970s-style drug war hysteria, Louisiana legislators passed a law mandating life without parole for people convicted of selling heroin.  In 2001, the legislature moved to amend that draconian law, amending it so that heroin distribution sentences ran from five to 50 years in prison.  That 2001 law also established a "risk review" process for early release of prisoners sentenced under harsh old laws....

More than 90 heroin lifers remain behind bars, many of them now elderly after having spent the 1970s, 1980s, 1990s, and half of the 2000s behind bars.  Last year, trial court judges in Orleans and St. Tammany parishes, frustrated with the glacial pace at which the reviews were moving, revised downward the sentences of a pair of heroin lifers and ordered their immediate release.

The state of Louisiana appealed the decision, and this week the state Supreme Court heard oral arguments in the case....  The two men whose cases are being appealed are Melvin Smith, who was convicted in 1977 and recently ordered released by Orleans Criminal District Court Judge Calvin Johnson, who had resentenced him to 28 years -- essentially time served; and Wesley Dick, who was sentenced to life in 2001 just before the law changed.  District Judge Patricia Hedges freed him in July after cutting his sentence to 10 years. 

In a sign of prosecutorial vindictiveness, Orleans Parish District Attorney Eddie Jordan blocked Smith's release.  The elderly Smith remains wheelchair-bound at the Orleans Parish House of Detention pending the Supreme Court decision regarding his fate.

Notably, the 90 "heroin lifers" that are suffering severe punishment in Louisiana is double the number of defendants executed this year nationwide.  How sorely I wish that 10% of the time and energy devoted this year to exploring whether lethal injection might cause some temporary pain and suffering for some convicted murderers would be redirected to exploring the pain and suffering endured elderly "heroin lifers" in Louisiana.  Sigh.

October 20, 2006 at 05:30 AM | Permalink


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Before you get all dewy-eyed about these non-violent offenders (and I agree that a rational system would look at the actual circumstances of their crimes), let's not forget that heroin is a powerfully addictive drug which ruins lives and causes death. If any of these turkeys sold heroin to children or were part of a major heroin distribution ring (which means that they would have been part and parcel of a scheme that delivered heroin to kids), they should stay right where they are. People who sell this poison (and I don't mean casual sales between dope fiends) to children belong in jail for the rest of their lives; people who engage in large-scale distribution of this poison do as well.

Perhaps you guys could feel a little sympathy for parents of children who succumbed to heroin. But I guess I am the meanie Rethuglican.

Posted by: Sean O'Brien | Oct 20, 2006 11:35:53 AM

"Perhaps you guys could feel a little sympathy for parents of children who succumbed to heroin."

Perhaps we should have some evidence that these heroin lifers Prof Berman is talking about actually sold smack to kids? That's the problem with mandatory minimums and harsh modern sentencing - we treat every offender as if he were the worst of the type, rather than provide some kind of individualized sentence based on what he actually did.

Posted by: JDB | Oct 20, 2006 3:45:49 PM

In the classic essay, On Liberty, John Stuart Mill wrote: "[T]he only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others." Elaborating, he explained that an individual's "own good, either physical or moral, is not sufficient warrant. He cannot be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because in the opinion of others, to do so would be wise, or even right."

Mill is recognized as one of the greatest thinkers of all time. Unfortunately, politicians in Louisiana and other legislative bodies in this country are not on the same intellectual plane as Mill.

Assuming the conduct of these convicted drug dealers consisted of the typical conduct of durg dealers, i.e., commerical transactions between consenting individuals, government has no proper basis for interceding, and government certainly has no basis for incarcerating these people for life. Those who view it otherwise presume to know not only what is best for themselves, but also what is best for others.

Anyway, would not Louisiana's resources more suitably be applied to recovery from Katrina than to paying for years and years of incarceration of non-violent drug-dealers?

Posted by: VSH | Oct 20, 2006 4:47:55 PM

Well, when we had individualized sentencing, we had judges and parole boards letting murderers go--only to kill again. People got sick and tired of it. Hence, the response. Of course, we just got a taste of the bad old days when a Clinton judge handed Lynne Stewart a slap on the wrist sentence.

I think my post, which concedes that we should be looking at the circumstances of these crimes--after all, cell space is a scarce resource.

My post criticized the author for reflexive sympathy for these guys. I think it important to remember that heroin is a poison and that if (and remember I used that word) these guys sold this stuff to kids, let 'em rot.

Posted by: | Oct 20, 2006 4:51:56 PM

Sean, is 10 or 20 years not enough? Aren't there diminishing returns to scale for punishment? How much of a continuing danger do former heroin sell once they are 45 or 50? Why is the United States alone among western industrialized countries in imposing sentences like this? I am surprised someone who proposes to just let human beings "rot" reads a sophsiticated blog. You are obviously an intelligent man, why don't you think about these and other sophisticated questions rather than write reflesive statist posts? Why is the sentence for Lynne Stewart not appropriate? She is a 67-year-old woman with breast cancer who will not be in a position to harm anyone again. Why don't you think about some of these questions and grow up.

Posted by: Mark | Oct 20, 2006 10:53:08 PM

Actually, Mark, I think that people like you should grow up. Instead of moral preening (i.e., see how moral I am because I take up the cudgel for felons and terrorist sympathizers like Lynne Stewart), you should get acquainted with just how much damage recidivist criminals wreak upon our society. Selling heroin to children is an appalling crime, as is distributing it to a wide market. People willing to gamble with peoples lives like that need to be removed from society--in many cases permanently. All I am proposing is that someone take a look at what these guys did. I fail to see why that's controversial. Moreover, the issue is more than whether someone will do it again--rather it's deterrence and punishment. Sell heroin to kids--go to jail for a very long time--I don't see what the problem is, since heroin addiction can kill.

As for Lynne Stewart, she gambled with the lives of innocent people. She is as evil as any that populate our death rows in America.

Posted by: | Oct 21, 2006 6:47:12 PM

I wish some state would pass a law mandating a life sentence for speeding or parking in a no-parking zone. This way we could get the SCOTUS to overturn a law based on improportionality as an 8th Amendment violation. It would be a 5-4 decision, with the minority (we know who they are) saying it is up to the legislature to pass such a law and not for the courts to second-guess the legislature. But at least we'd have a good, clear precedent on the issue.

Heroin addiction doesn't kill. Drug laws kill.

On a side note, I'd gladly see the deaths of 35,000,000 children than have one more person go to prison for one day for a possessory drug crime. My right to skip through commercials on my Tivo is worth at least 150,000 dead children. And yes, I'm talking about white, blond-haired American children. We obviously measure our rights and liberties these days in terms of how many dead children will result therefrom, so let's cut to the chase when debating such things and state how many dead kids they are worth.

Posted by: bruce | Oct 22, 2006 1:13:21 AM

Had I the power to pass a constitutional amendment, high on my list of priorities would be a ban on sentences longer than 10 or 20 years. If a crime is worth taking somebody's life away, or if you don't think the criminal can ever rejoin society, set up the guillotine or whatever and do what needs to be done. And if you're not confident enough in the system to do that, isn't that "reasonable doubt?"

bruce -- If traffic laws were ever enforced, you would see a revolution. Traffic laws affect normal people. The average person is comfortable believing both "the speed limit should be 55" and "I shouldn't get a ticket for driving 70." In many states they can get 90 days or a year in prison for doing 56. But they don't. At least, not unless they are the kind of person who could be sent away for life for dealing heroin without making the public uncomfortable.

Posted by: John Carr | Oct 22, 2006 5:18:50 PM

John, are there really states wherein speeding is more than a fine-only offense and actual jail time (up to a year?!) can be imposed? I've never heard of such a regime.

I don't understand how society ever agreed and consented to speed limits. Who would vote for a system in which they'd get fined and arrested for driving over an arbitrary and artificially slow speed?

Posted by: bruce | Oct 23, 2006 10:56:02 AM

In Georgia, traffic offenses are misdemeanors. Like all misdemeanors in the state, they carry a potential exposure of 1 year in jail. Not that it ever happened during the two summers I worked at the prosecutor's office.

Posted by: Tim S | Oct 23, 2006 12:18:50 PM

A lawyer I know describes speed limits, cell phone bans, and many other traffic rules as "aspirational laws." Somebody says "wouldn't it be nice if everybody ..." when the real question should be "do we want to put everybody in jail who does not ..."

This lawyer works in New York where speeding more than 10 over is jailable. He's had a couple clients go to jail for extreme speeding. They could have been charged with reckless driving but why bother when speeding is easier to prove?

Underage drinking is another example. If we locked up every kid who drank a beer, we wouldn't need to build new schools. But it would be nice, some people say, if other people didn't drink until they turned 21.

Massachusetts passed a tough speed law 1902. Ten days and jail and a $200 fine for driving more than ten miles per hour in a city or 15 in the country. That $200 is worth over $2,000 today. Apparently somebody realized that was extreme, because within a few years the law was rewritten to have no jail time and a $25 fine. From 1909 until the early 1970s Massachusetts had sane speed laws. Speed limits tended to match driver expectations and more importantly, the prosecution had to prove beyond a reasonable doubt that the defendant was driving at an unreasonable speed for conditions, using the posted limit only as a rule of evidence rather than a strict standard. In the 1970s speed limits stopped being set based on road safety. (I have compared the engineering reports before and after 1972, and the difference is clear.) In the 1980s speeding was decriminalized and the driver went to court with a legal presumption of guilt to face a magistrate with minimal legal skill and even less interest in a fair trial. And so in 20 years we went from a speeding conviction being a sign of bad driving to a speeding conviction being a sign that a police officer wanted to give you a ticket.

Having seen how traffic law works, I know I don't want to "decriminalize" drugs. I want drugs legalized or criminalized, depending on drug and context, not some middle ground.

Posted by: John Carr | Oct 23, 2006 3:48:25 PM

There are many other non-violent offenders in Louisiana that are "rotting" away in our prisons due to excessive sentencing because of the habitial offender laws. A drug addict who is feeding his own habit may be sentenced up to 20yrs. to life on a "simple possesion" conviction because it was their second or more arrest. A drug addict will not get the rehabilitation he needs in jail. Taxpayers are paying for years and years of incarceration and the addict will come out without the tools to work a recovery program. The absense of drugs does not "cure" an addict.A drug addict(if non-violent) should not be locked away for life. They should be placed in a facility where recovery work is done. They should be allowed to contribute to society by working/earning their keep.

Posted by: PKM | Nov 15, 2006 2:10:18 PM

There are many non-violent drug addicts "rotting" away in jails because of the repeat offender laws. Drug addicts do not benefit from incarceration.Keeping non-violent offenders behind bars without recovery programs does not give them the tools to become successful citzens when they get out, hence their label"repeat offenders". Mandatory jail sentences for repeat offenders do not make any sense when the person is a non-violent drug addict. Simple possession of cocaine turns into a 10-20 yrs. sentence for a repeat offender.
When will our system realize the need for drug rehabilitaion and not incarceratin for drug addicts? Does any one know someone to talk to in Louisiana to help such persons?

Posted by: PKM | Nov 16, 2006 12:57:43 PM

The Louisiana Supreme Court on Friday held that the body of the statute allowing resentencing was ambiguous. Turning to the legislative history, a four person majority held that the deletion in committee of a specific provision mandating resentencing led to the conclusion that the heroin lifers can only apply to the risk review committee for a recommendation that the governor commute their sentences. The majority viewed a contrary construction of the statute as granting commutation power to judges, when such power is vested in the executive branch.
I will be working on the rehearing application next week, but for now, the hopes of most are dashed. On the other hand, the risk review panel had not had a single recommendation of commutation adopted by the governor prior to our oral argument in the Dick/Smith cases. After Justice Johnson asked the pointed question as to how many commutation recommendations had been granted by the Governor at oral argument, within two weeks Governor Blanco granted the recommendation as to Melvin Smith. That was with the pressure on. We'll see how it works with the pressure off.

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