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August 26, 2005

Reefer madness in the 8th Circuit

I will leave it to readers to decide for themselves which judges on the Eighth Circuit seem to have their judgment clouded by the wicked weed in US v. Chauncey, No. 04-1529 (8th Cir. Aug. 25, 2005) (available here).  The defendant in Chauncey, as a result of a criminal history leading to his classification as a career offender, received a sentence of 100 months after being convicted of possessing with intent to distribute less than two ounces of marijuana.  According to Judge Lay's dissent, "Chauncey's undisputed purpose was to help [his friend] obtain marijuana to alleviate the painful effects of her multiple sclerosis."

In Chauncey, the Eighth Circuit rejects numerous arguments concerning the defendant's trial and (pre-Booker) sentencing.  Particularly interesting for sentencing fans is the panel majority's rejection of the defendant's claim that his sentence was unreasonable in light of the 3553(a) factors.  Revealing yet again the circuits' obvious disinclination to declare any within guideline sentencing unreasonable, the panel majority relies heavily on the applicable guideline range to "conclude that the sentence passes muster under Booker."

In a spirited dissent, Judge Lay argues that 100 months for Chauncey's offense violates the Eighth Amendment's prohibition on cruel and unusual punishments.  Judge Lay concludes by noting that "the Government can cite no case that has approved a sentence as harsh as Chauncey's for possession with intent to distribute less than two ounces of marijuana."  Disappointingly, Judge Lay's dissent does not engage the issue of reasonableness after Booker (although surely he believes the sentence is unreasonable as well as unconstitutional).

I find both the facts and the ruling in Chauncey sad, especially because it demonstrates again the persistence of the post-Booker appellate sopor in which the circuits are repeatedly suggesting through word and deed that even the federal guidelines' most extreme sentencing terms are always reasonable.

UPDATE: Over at TalkLeft, these comments about the Chauncey case are really interesting and telling.

August 26, 2005 at 01:54 AM | Permalink


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Via TalkLeft comes Reefer Madness in the 8th Circuit by Doug Berman. [Read More]

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Tracked on Aug 26, 2005 11:17:50 AM


Set the legalistic arguments aside for a moment and examine the gravity of this offense from a moral perspective. In that light, any fair-minded person can see the imbalance on the scales of justice in this case.

To my mind this is the very antithesis of justice, it is in fact little more than barbarism. In the larger picture, the affirmation of this conviction will lead to an undermining of public confidence in US jurisprudence and the entire legal system.

You'd expect these kinds of decisions coming from an appellate court in the 1950s or the 1960s, but this is the 21st century. We seem to be moving backwards in the courts

When Robert Lee Chauncey was arrested, he didn't resist, he cooperated with the police and told the truth. Unfortunately it seems that his honesty and forthright behavior had no bearing on his sentencing whatsoever. In fact it seems to have worked against him and help consolidate the the prosecution's case under the letter of the law.

Do we really want to see individuals who are apprehended with a few ounces of marijuana shooting it out with the police because they don't want to spend the next decade in prison. That will be the likely consequence of these types of decisions.

As to myself, I'm just one of the dregs of humanity, a shambling shell of what was once a promising human being, sorry if that disappoints you.

Posted by: Aaron | Aug 26, 2005 5:37:45 AM

Neither the professor nor Aaron discusses Chauncey's status as a career offender. How does that enter into your thinking? What were his prior crimes? What kind of sentence would keep him from committing further felonies? If deterence is irrelevant for recidivists, what are the policy goals in sentencing a career offender?

In your emotional pique, you fail to address these important questions. Any discussion of the appropriateness of Chauncey's sentence should address these issues, to be of much value to public discourse.

As for Aaron's statement that he's one of the "dregs of humanity," if true, I'd be more interested in his views about how he could become a productive member of society, or about the conditions that led him to his current condition.

Posted by: Mark | Aug 26, 2005 12:02:17 PM

Fair points, Mark, though I think the details of the defendant's criminal history makes the case even more depressing. The prior offenses were involuntary manslaughter, which arose out of a car accident in 1990, and selling one-quarter ounce of marijuana for fifty dollars in 1998. There also are some allegations other mis-behavior apparently as a result of substance abuse problems.

You are right to spotlight that what drive this case is the defendant's criminal history, but that history hardly makes the defendant appear to be a hardened criminal.

Posted by: Doug B. | Aug 26, 2005 12:13:09 PM

I'm an attorney and a professor, although in neither respect in the area of criminal law.

The basic problem with the current jurisprudence of the 8th Amendment is that it makes no meaningful analysis of the proportionality of a sentence to the crime. Cruel and unusual has basically been interpreted to rule out any ordinary prison sentence as cruel. When you can serve life in prison for shoplifting without offending the 8th Amendment, it is hard to rule that eight years for petty drug dealing for an understandable reason is unconstitutional.

Now, it is correct to note that the most egregious cases where the 8th Amendment has been held not to apply involve repeate offenders. But, inherent in that whole notion of innocent until proven guilty is the idea that someone is not a stranger to the law simply because he has comitted a prior crime. It is one thing to sentence a prior offender at the top end of what a reasonable range would be for someone with no prior criminal record, or even somewhat higher. It is another thing to impose a sentence that, in effect, in 90% for what you have done in the prior offenses, and 10% for what you have done without considering those prior offenses.

Posted by: ohwilleke | Aug 26, 2005 12:17:58 PM

I have to disagree with Mark's comments above. Most people hear "career offender" and think of someone with a rap sheet a mile long. The guidelines, however, require only two prior qualifying offenses. Qualifying offenses are "crimes of violence" or "drug trafficking" offenses. But "crimes of violence" don't have to actually be violent at all--they can include no touching or injury of a person whatsoever--and "drug trafficking" sure sounds bad, but can include giving less than two ounces of pot to a friend with a chronic illness. As the Professor rightly points out, the guidelines are not, in every instance, reasonable.

To me, however, it wouldn't matter if Chauncey's priors had involved actual deliberate violence and/or actual drug kingpin trafficking. No crime this petty done for these reasons should receive a 100 month sentence, regardless of the defendant's priors. I feel that way for moral reasons as well as economic ones (we can't afford these types of sentences). The guidelines focus too much on prior criminal history and ignore too many causal factors of the crime itself to determine proper punishment. They are a "blunt instrument" that takes no account of the modern understanding of criminology; as such they are not geared intelligently towards deterrence and social protection. Anyone who feels the result in Chauncey is unjust and wonders what our alternatives are (in addition to judges having sufficient backbone to grant guidelines variances) should read the "smart sentencing" proposals of Oregon's Judge Marcus (discussed by the Professor last month). God help Mr. Chauncey, and us.

Posted by: Bob Jenkins | Aug 26, 2005 12:59:49 PM

Another curious point about this sad case. It appears he was arrested by a state police officer, for a crime committed entirely within the state, but was prosecuted in Federal Court.

Is this one of those cases where the state hands the defendant over to the feds, because the federal penalties are so much harsher than the corresponding state penalties?

Posted by: Marc Shepherd | Aug 26, 2005 2:45:02 PM

I appreciate the comments above. Particularly telling is the fact that one of Chauncey's prior felonies involved the death of a human being, and the other one involved drug trafficking. Whether "three strikes" or "career criminal" or whatever, at some point felons should realize that they need to stop committing felonies or they may face some VERY SERIOUS CONSEQUENCES to further felonies. After killing one human being, and being convicted of drug trafficking, Chauncey was on notice that he needed to stop his felonious activities. For those who think his current sentence is harsh, what kind of responsibilty, if any, are you willing to impose on Chauncey to stop committing felonies?

While I may sound harsh, please know that I represent many criminal defendants facing very long terms (or death) for their crimes. Way more than I'd like to recall, I've had to explain (whether for felon-in-possession, or Armed Career Criminal, or "three strikes" charges) the consequences of repeat felonies. NOT ONCE has the defendant been surprised. More than most, they have spent time in prison and know (and knew at the time of their offense) that they face the possibility of extremely long sentences for their crimes. Furthermore, I have yet to hear a good explanation for their willingness to take such a known, palpably bad risk. In my (long) experience, these are not unintelligent human beings. With full knowledge, they have gambled and lost. Maybe their original sentences were too short to prevent these felonies, I don't know. But I do know that one manslaughter conviction and one drug-trafficking conviction should be enough for any one individual.

Do you share the same moral outrage that Chauncey's first sentences were obviously too lenient as you do for your belief that his third sentence is too harsh? If not, why not? Our society should not be unwilling to impose judgment -- even harsh judgment -- on those who have full knowledge of their repeated criminal activity yet refuse to stop.

Finally, to anyone who thinks "he was just buying a little pot for a good cause": without having any knowledge of Chauncey's manslaughter case, I would bet that Chauncey's involuntary manslaughter episode involved drug use. If true, how many dead victims are acceptable to you? If not true, how many dead victims are acceptable to you? For the readers of this (wonderful) blog, is there a rational or moral difference between these two questions?

Posted by: Mark | Aug 26, 2005 3:12:11 PM

I'm a criminal law professor.

Yes, it is hard to see how an 8-year sentence for this repeat offender violates the 8th Amendment, if Ewing's sentence of 25-to-life is OK. But the 5 justices who approved Ewing's sentence got it wrong (and state courts should reach a different result, under state constitutional counterparts of the 8th Amdt). In part SCOTUS went astray because courts and punishment theorists have done a poor job of articulating meaningful retributive limits on repeat-offender sentencing. I personally favor the principle stated in a prior post -- it is acceptable to sentence a serious repeat offender "somewhat higher" than "the top end of what a reasonable range would be for someone with no prior criminal record." However, we need a much more convincing moral account of how to compute that "somewhat higher" range.

Another reason the Ewing court got it wrong is because (as I argue in 89 Minn. L. Rev. 571) none of the justices clearly understood the several meanings of proportionality. A sentence can be grossly disproportionate not only in a retributive sense, but also relative to crime-control goals -- either because the sentence is much more severe than it needs to be to achieve those goals, or because the costs and burdens of the sentence greatly outweigh it's likely benefits. Scalia would say that the latter assessments are pure policy, not constitutional law. But there are lots of examples of these two utilitarian proportionality principles, in U.S. constitutional law.

In any case, surely a sentence can be disproportionate in one or more of the senses mentioned above, and therefore "unreasonable," even if it isn't grossly disproportionate. Post-Booker courts need to develop and apply workable standards of sub-constitutional proportionality. They should do so to see that justice is done, and that the purposes and limits of punishment listed in Sec. 3553(a) are achieved. Such standards would also provide a principled basis to reverse some within-Guidelines sentences, which may be necessary to ensure that federal sentencing remains sufficiently "voluntary" to comply with Blakely. If within-Guidelines sentences are routinely approved on appeal, and at least some departures are reversed, doesn't that tend to give defendants a legally-protected expectation of receiving the Guidelines sentence, just like the pre-Booker Guidelines did?

Posted by: Richard Frase | Aug 26, 2005 3:25:11 PM

I am a prosecutor:

A couple quick points I think should be added after a quick read of the opinion:

1. I don't think the dissent was totally accurate in its characterization of the defendant's purpose - because the factual recitation points out the MS sufferer and defendant bought two ounces of marijuana, one for the sufferer and one for defendant to sell on the street, presumably to someone with no such affliction.

2. The evidence at trial most favorable to the verdict also suggested defendant threatened, in an attempt to intimidate, the star government witness (although he doesn't appear to have received additional points for obstruction of justice).

3. Also, if the facts of the case were truly "undisputed" as it has been argued - defendant could have plead and reserved his right to appeal the sentence, the search, the lion's share of this whole appeal and received years' less time for accepting responsibility - that's no one's fault but his.

Ultimately, the prosecutors have a tremendous amount of discretion and, obviously, some feel they abused it in this case - at least they are a part of the government ultimately answerable to the people.

Posted by: Tom | Aug 26, 2005 4:44:21 PM

One of the reasons that extreme prosecutorial discretion, as displayed in this case where what would have been a minor offense under state law is prosecuted is a serious offense under federal law, is that discretion distorts the entire fact finding process by giving the prosecutor too much power in the plea bargaining process.

The risk of facing an eight year sentence for a minor offense makes the incentive for even an innocent person to plea guilty intolerably high, and we don't assign guilt finding to the prosecutors office.

Also, in the case of a federal offense, the case that the prosecutor is answerable to the people is particularly weak. While a state level county prosecutor, rwho handles the vast majority of criminal case, reports directly to an elected official who must answer to the local voters for his conduct in his particular office every four years, at the federal level, the deputy U.S. attorney reports to a U.S. attorney, appointed by the President, typically with no input from local elected official and only modest input from local Senators, in a decision that was not an important part of what voters were thinking about when they elected him. If the justification for prosecutorial authority derives from the voters, it is nowhere weaker than in a case like this one.


The most obvious way to compare proportionality in repeat offender cases is to compare the sentence with and without repeat offender enhancements, just as in punitive damage cases current jurisprudence calls for comparing the compensatory award to the punitive award except in the most de minimus case.

It would be entirely reasonable, under the cruel and unusual sentence notion of proportionality and limitations on after the fact punishment for previously sentenced crimes, to limit aggrevations to say, 1/3rd to a half of the total sentence.


As far as the death of a human being and drug trafficing aspects of this case. First, thre is no compelling justification for involuntary manslaughter to be a serious sentence enhancer at all, because the recidivism concept flows from a persistent criminal intent which is absent from that offense. Second, calling selling a quarter ounce of pot for $50 "drug trafficing" is maudlin. It is akin to lumping someone who pinches you with someone who beats you to a pulp collapsing your lungs and breaking your bones together as people who commited "assault".

Posted by: ohwilleke | Aug 26, 2005 5:14:13 PM

One of your commentors mentioned that a "crime of violence" can be where there is no actual violence.

However among these crimes include those that have violence inherent to them: burglary (victim walks in on a burglar), statutory rape (even if "consensual" - a 14 year old lacks the capacity to consent), etc.

The defendant made his bed - and deservedly has to lie in it at some point.

Posted by: Deuce | Aug 26, 2005 6:21:22 PM

Unsurprisingly, it seems people disagree as to whether such sentences are just or fair. What seems less debatable is whether they are "smart," by which I mean (1) economically feasible; and (2) tailored towards deterrence. Lay people often believe that the longer the sentence, the greater the deterrence. They are surprised to learn that the data shows that is most often not the case. Professionals in the criminal justice community (judges, prosecutors, defense attorneys, probation officers, parole boards) have at their disposal large amounts of criminological data that would help better predict the optimal sentences (and rehabilitation programs) to achieve the desired ends of punishment and deterrence. The guidelines are not based on this knowledge. They over-rely on criminal history (using an uninformative and non-predictive point system based on length of prior sentences). They account somewhat for actions committed during the crime, but largely ignore the causes and motivations for those actions. This leads to a system that is the equivalent of a horse-and-buggy in the space age. We can do better, more justly, and more cheaply.

Posted by: joaqin sandoval | Aug 26, 2005 7:15:07 PM

Oh please,

Has everyone here forgotten that this man
was sentenced to eight years for selling a
plant? Historically the most helpful plant
ever known to mankind. Please read the history of marijuana prohibition. This in itself is an American tragedy. If our fore fathers were alive today they would need to do life for as much
cannabis as they grew and sell The American revolution could not have happened without it.
It is the SCOTUS and the Eighth Circut Court that are the criminals in this case.

Posted by: felonious farmer | Aug 27, 2005 10:16:45 PM


I guess I'll have to answer you hear since you provided no link, much like many of the other people who posted here. Come on people get with this blogging thing.

Though you're correct in your assessment that Robert Lee Chauncey has a criminal history, as others have pointed out, it's important to look at the exact nature of those criminal offenses. It's especially important for judges to look closely at those offenses. But I suppose some feel that all citizens who display any form of criminality should be bunched together into one monolithic group.

You make the assumption that I'm not a productive member of society, as if that were any of your business in the first place. Perhaps you overlook the possibility that I may be a productive shambling dreg. Such presumptions inquiries are always most revealing of the person doing the asking. What if I told you that I got my arms and legs blown off in Iraq, defending your freedom (as the propaganda would have you believe), would you still post some pontificating comment in that superior tone? I'll bet you would.

And if I may be permitted to make an assumption of my own, I'd be willing to bet dollars to doughnuts that you're a Republican and a Bush supporter as well, someone who believes in the enforcement of the law and order at any cost, irregardless of fairness or any accepted interpretation of what constitutes justice. Am I warm?


As to the arrest in this case and the question of federal jurisdiction, the name (Mary Fast Horse) in the appellate decision would lead me to believe that these are possibly Native Americans. Perhaps these offenses occurred on reservation land.

In reading a number of comments on this case in a few different blogs I've heard racism mentioned more than once, and I would not rule out that possibility with regard to the local police and their dealings with Native Americans in South Dakota.

Posted by: Aaron | Aug 28, 2005 2:05:52 AM

It isn't a widely know fact, and isn't directly applicable to this case, the a very large share of all violent crimes punished in federal court are either bank robberies or crimes committed on reservations. In the vast majority of other cases, serious violent crimes are prosecuted in state court.

Posted by: ohwilleke | Aug 29, 2005 1:23:54 PM

I'm not professionally connected with the legal system, just a victim.
What all seems academic here is not viewed by the reality of being a citizen that has beaten a case wrongfully prosecuted. After the case the prosecutor would say that the system worked, which we all know is bull. At least I do as I was the one in the defendents' chair. Ten years later, long forgotten, the call for jury duty comes to my door.Having spent many years of my younger years with the Marine Corps I finally had the opportunity to fully understand our original phrase that, "Payback is a Bitch". I am sure you can figure out the rest of the course of the case. My point is that we frequently deserve the justice system that we get. Doing nothing about it allows it to continue.

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