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June 22, 2011

Judge Davis laments drug war's damage and costs in concurrence requiring LWOP for druggie

A couple of helpful readers altered me to a notable concurring opinion authored by Judge Davis of the Fourth Circuit in US v. Gregg, No.10-4198 (4th Cir. July 17, 2011) (available here). Here are snippets from this opinion, which merits a full read:

The distinguished district judge was aghast that the now forty-year-old Tony Gregg would spend the rest of his life in federal prison for selling small amounts of crack cocaine over a period of several weeks out of a hotel room in a run-down section of Richmond...

[P]rior to trial, Gregg was offered a plea agreement for a twenty-year sentence; when he rejected the government’s offer, the government went all out for the life sentence found to be unjust by the district court. Of the government’s four non-law-enforcement witnesses at the one-day trial below, all four were women who were themselves, like Gregg, users and sellers of crack cocaine and heroin who worked with Gregg to sell crack cocaine.

Understandably, perhaps, to many, Gregg is not a sympathetic figure; they will think: he got what he deserved. To many others, perhaps, matters are not so clear. Indeed, many would say that Tony Gregg seems to be one more of the drug war’s “expendables.” See Nora V. Demleitner, “Collateral Damage”: No Re-Entry for Drug Offenders, 47 Vill. L. Rev. 1027, 1050 (2002).

This case presents familiar facts seen in courts across the country: a defendant addicted to narcotics selling narcotics in order to support his habit.  Unfortunately for Gregg and countless other poorly-educated, drug-dependant offenders, current drug prosecution and sentencing policy mandates that he spend the rest of his life in prison....

The mass incarceration of drug offenders persists into the second decade of the twenty-first century despite the fact that research consistently demonstrates that the current approach to combating illegal drug use and drug trafficking is a failure.... Even the U.S. drug czar, a position created by the Anti-Drug Abuse Act of 1988, admits the war on drugs is failing, stating that after 40 years and $1 trillion, “it has not been successful ... the concern about drugs and drug problems is, if anything, magnified, intensified.” Martha Mendoza, After 40 Years and $1 Trillion, Drug Use Is Rampant and Violence Pervasive, Associated Press, May 13, 2010.

I share the district judge’s dismay over the legallymandated sentence he must impose in this case. While the controlling legal principles require us to order the reimposition of a sentence of life without parole in this case, the time has long passed when policymakers should come to acknowledge the nation’s failed drug policy and to act on that acknowledgement.

As a nation, we are smart enough to do better.

June 22, 2011 at 02:38 PM | Permalink


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Doug, thanks for posting the opinion. I continue to be puzzled by statements of judges who impose lengthy sentences and then say, as the district court judge here said, "I don't have any discretion about it. ... "This is just silly, but as I say, I don't have any choice."

It seems to me that a long line of cases, beginning with Marbury v Madison and most recently Graham v Florida, makes clear that judges do have a choice. They can say that the sentence as applied to the facts of the particular case violates the Eighth Amendment and is therefore unconstitutional. That is what the Supreme Court did in Graham, why can't the lower court trial and appellate judges do the same thing. (One could quarrel in Graham that the remedy shouldn't have been a categorical rule and that Chief Justice Roberts' concurring opinion should have prevailed, but no one can argue that the justices thought that they were powerless to do something about a statute that they believe violated the constitution.)

In other words, judges, stop complaining and do something that the constitution gives you the power to do.


Posted by: bruce cunningham | Jun 22, 2011 3:36:25 PM

Although I think Judge Davis's opinion goes overboard in sympathizing with the defendant-as-passive-victim, as opposed to acknowledging the direct and indirect effects his drug sales had on others and **their** families, one doesn't have to agree with the tone (or lack of balance) to appreciate his concerns.

I also generally have a lot more respect for the judge who enforces the law (even as he publicizes his disagreement with it in the hopes that it will influence the policy-makers responsible for writing and enforcing the laws); as opposed to judges (e.g., Reinhardt) who would simply view it as an opportunity to hold either that the government somehow forfeited its claims or that the Constitution forbids the result because it strikes him as unjust.

Posted by: guest | Jun 22, 2011 3:41:55 PM

@Bruce Cunningham:

I didn't see your post when I composed mine, but my answer -- or at least a big part of it -- would be that the approach of just allowing judges to say that whatever sentence strikes him or her as unfair (or even really unfair) on that case's particular facts as a violation of the Eighth Amendment would simply be untenable. (Among other things, we would regularly see different Ninth Circuit panels holding that the Eighth Amendment means very different things depending on the composition of the appellate panel. Great for the defendants who draw a panel of Judges Reinhardt, Pregerson, and, say, Betty Fletcher, who'd likely rule if given the opportunity that even a 20-year sentence for recidivist drug-dealing, no matter the quantities or the number of previous convictions, amounts to cruel and unusual punishment. Not as good for otherwise-similarly-situated defendants who draw a panel of, say, Judges O'Scannlain, Rymer, and Callahan. Also bad for anyone else who thinks that the Constitution's purported meaning shouldn't simply be reduced to an eye-of-the-beholder thing.)

Posted by: guest | Jun 22, 2011 3:56:02 PM

guest --

Nailed it. Unless law means nothing at all, judges are not free to just make it up as they go along, proclaiming that their opinion that X sentence is TOO HARSH actually means that X sentence is UNCONSTITUTIONAL.

Yes, the Supreme Court occasionally does this, but far more often it does not, see, e.g., Argersinger v. Hamlin. Lower court judges should be even more deferential to legislative judgments.

The parameters of drug sentencing, as of all sentencing, are for the legislature to decide. It takes something more than personal taste, or the taste of the academic Left, to declare that the legislature's judgment is so grotesque as to amount to a Constitutional violation.

If opponents of these sorts of sentences want them changed, the answer is easy: Elect a Congress that will change them.

Posted by: Bill Otis | Jun 22, 2011 4:09:27 PM

@ Bill: "If opponents of these sorts of sentences want them changed, the answer is easy: Elect a Congress that will change them."

I could also understand a judge stating that, in his or her view, the case and others like it warrant a serious and hard look as part of the executive determination whether to commute the sentence to a substantial determinate sentence.

Posted by: guest | Jun 22, 2011 4:58:19 PM


So the congressional policy path to redress this sort of thing will work effectively - just like the judicial one isn't supposed to, is that what you're saying?

Posted by: anon | Jun 22, 2011 5:32:21 PM


P.S. Do you think this person deserves a life sentence?

Posted by: anon | Jun 22, 2011 5:49:39 PM

"If opponents of these sorts of sentences want them changed, the answer is easy: Elect a Congress that will change them."

But see, e.g., William J. Stuntz, The Pathological Politics of Criminal Law, 100 Mich. L. Rev. 505 (2001) (noting that actually electing a congress who will optimally change sentencing laws is——due to an array of historical, institutional, structural, sociological, psychological, political, ideological and economic factors——extremely non-easy).

Posted by: Michael Drake | Jun 22, 2011 6:27:59 PM

anon --

Your questions assume a result orientation I do not share. By "will work effectively," you apparently mean "will result in a lower sentence." But I do not assume a lower sentence is "effective," whatever that means in this context.

Congress passes lots of laws I disagree with. But it is still within Congress's power to establish those laws. If I think they're wrong, I can work to elect people who agree with me. Until I succeed in doing so, I must obey them or face the consequences.

People have been fighting about drug sentences for 40 years. That's 20 different Congresses. If it were the will of the people to change those laws, there has been more than ample opportunity (and, indeed, the crack sentencing laws were changed in the last Congress).

Judging -- in contrast to politics -- is not about reaching results favorable to one side or the other. It is about applying written law to facts (as Judge Davis acknowledges), letting the chips fall where they may.

There is a reason (other than the vast ______ (fill in the blank) conspiracy) that almost all the drug laws have remained as they are, or have gotten stiffer, over the last four decades. As Judge Davis notes, those of you favoring easier drug sentencing (just as those on my side favoring lower taxes) have to win your case with the electorate.

P.S. As the above implies, acceptance of the rule of democratically enacted law necessarily means occasionally accepting a particular outcome, in sentencing as elsewhere, that you regard as undeserved.

Posted by: Bill Otis | Jun 22, 2011 6:34:03 PM

Michael Drake --

The late and laudable Prof. Stuntz's list of factors that make electing a softer-drug-sentencing Congress difficult is virtually identical to the list of factors that go into the election of ANY CONGRESS AT ALL. In other words, historical, institutional, structural, sociological, psychological, political, ideological and economic factors are exactly the factors at work in any election we've ever had.

Yes, some laws are hard to change. It was, for example, very hard to pass Obamacare. Indeed, it was so hard that it took several instances of what in any other context would be called bribery. And it will be very hard to repeal Obamacare; the Republicans would have to hold the House (likely), win the Senate (fairly likely), and defeat Barack (unlikely with the current field).

Too bad. That's how democracy works.

The liberal, pro-defense and pro-druggie majority on this site simply assumes that the drug laws are as unpopular with the public as they are with them. But the polling uniformly shows this is a myth.

With all respect to Prof. Stuntz, the reason the drug laws mostly stay as they are is not because of some unique or freakish confluence of malevolent electoral factors. It's because the public is pretty much content with those laws, particularly with respect to the harder drugs of the type at issue in this case.

Posted by: Bill Otis | Jun 22, 2011 7:21:27 PM

Bill and Guest, In my post I did not suggest that if a judge felt that a sentence was too harsh, he or she could disregard what the legislature has specified and impose whatever he wanted. I subscribe completely, as do seven justices on the court, to the three step test in Justice Kennedy's concurring opinion in Harmelin v Michigan. Justices Scalia and Thomas believe that the cruel and unusual punishment clause prohibits only modes of punishment like boiling in oil, drawing and quartering, keel hauling, etc.

I would encourage both of you to read Graham carefully and you will see that even Roberts adheres to Kennedy's test. I respect yours, or anyone's, disagreement with my opinions, but I would prefer that folks read in them what is there. It has been the established law since Marbury v Madison that judges are not powerless to refuse to enforce a law simply because the legislature enacted it. The principle of judicial review is the bedrock foundation of our constitutional democracy and what separates us from the rest of the world.

Also, the notion that the popularly elected legislature is the ultimate protector of a citizen's constitutional rights is as naive as it is alien to our admirable system. Bill, I am supporting the rule of law, not abandoning it.


Posted by: bruce cunningham | Jun 22, 2011 7:49:01 PM

bruce --

Without going into a whole law school class, I'll just say this. While, as you correctly maintain, the principle of judicial review has a long historical pedigree, so does the principle of judicial restraint in applying it, lest the fundamental Founding precept of democratic self-rule be undermined.

Posted by: Bill Otis | Jun 22, 2011 10:44:31 PM

or the quicker alternative is if the public belives these laws to be WRONG and are tired of trying to elect politicians who ACTUALLY listen to their voters.

HANG EM ALL! and start over!

Posted by: rodsmith | Jun 23, 2011 1:19:52 AM

@Bruce Cunningham: Given the existing precedents, I sincerely doubt that any judge could find this sentence a constitutional violation, and expect to be affirmed by the Supreme Court. The cases in which the Supreme Court has approved that approach are extremely limited.

Posted by: Marc Shepherd | Jun 23, 2011 8:56:01 AM

A federal judge disagrees with a mandatary minium. Not really a notable opinion. D should have taken the deal.

Posted by: lawdevil | Jun 23, 2011 12:19:38 PM

bill and marc, I agree that it is extremely unlikely that any judge would find the sentence cruel and unusual, my point and quarrel was with judges who think they have no power to do so. It is one thing to engage in a process and refuse to act and another thing to believe that you have no power to engage in the process. My point related only to judges who believe they have no power.


Posted by: bruce cunningham | Jun 23, 2011 12:23:19 PM

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