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May 14, 2021

Split Mississippi appellate court upholds, against Eighth Amendment challenge, an LWOP habitual-offender sentence for marijuana possession

As report in this AP piece, the "Mississippi Court of Appeals on Tuesday upheld a life sentence for a man convicted of a marijuana possession charge because he had previous convictions and those made him a habitual offender." Here is bit more about the ruling from the AP:

Allen Russell, 38, was sentenced to life in Forrest County in 2019 after a jury found him guilty of possession of more than 30 grams (1.05 ounces) of marijuana.

In Mississippi, a person can be sentenced to life without parole after serving at least one year in prison on two separate felonies, one of which must be a violent offense. Russell was convicted on two home burglaries in 2004 and for unlawful possession of a firearm in 2015. By law, burglary is a violent offense in Mississippi, whether or not there is proof that violence occurred. That was not the case when Russell was sentenced for home burglary in 2004. Then, burglary was only considered a violent crime if there was proof of violence. The law changed in 2014.

In his appeal, Russell argued that a life sentence constitutes “cruel and unusual punishment and is grossly disproportionate” to his crime of marijuana possession. The Court of Appeals disagreed in its majority opinion, stating that Russell’s life sentence is in accordance with Mississippi law. Russell is not being sentenced solely for having marijuana, but for being a habitual offender, the judges said.

But several dissenting judges argued that the court can — and should — make exceptions. “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,” Judge Latrice Westbrooks wrote. “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.”

The full opinions in Russell v. Mississippi, NO. 2019-KA-01670-COA (Miss. Ct. App. May 11, 2021), are available here.  Here is the start and another part of the majority opinion:

A Forrest County jury found Allen Russell guilty of possession of marijuana in an amount greater than 30 grams but less than 250 grams. The Forrest County Circuit Court sentenced Russell as a violent habitual offender under Mississippi Code Annotated section 99-19-83 (Rev. 2015) to life imprisonment in the custody of the Mississippi Department of Corrections (MDOC) without eligibility for probation or parole. On appeal from the circuit court’s judgment, Russell argues that his sentence constitutes cruel and unusual punishment and is grossly disproportionate to his felony conviction. Finding no error, we affirm....

Here, the State’s evidence established that Russell had two prior separate felony convictions for burglary of a dwelling, for which he was sentenced to and served over one year in MDOC’s custody on each conviction.  The State also presented evidence that Russell was later convicted of possession of a firearm by a felon and sentenced to ten years with eight years suspended and two years to serve, followed by five years of post-release supervision.  Based on such evidence, the circuit court justifiably found Russell to be a violent habitual offender under section 99-19-83 and sentenced him to life imprisonment in MDOC’s custody without eligibility for probation or parole.  Because Russell has failed to prove the threshold requirement of gross disproportionality, and because his habitual-offender sentence fell within the statutory guidelines, we conclude that his sentence constituted “a constitutionally permissible punishment for his most recent crime . . . .” Miller, 225 So. 3d at 16 (¶17). We therefore find this issue lacks merit.

One of the dissents begins this way:

In Solem v. Helm, 466 U.S. 277 (1983), the United States Supreme Court held that a life without parole sentence for a recidivist criminal convicted of a relatively low-level felony violated the Eighth Amendment. In terms of the gravity of his present offense and the extent and seriousness of his criminal history, I cannot draw any material distinction between Allen Russell and the defendant in Solem. Thus, I conclude that we are bound under Solem to vacate Russell’s life without parole sentence. Accordingly, I respectfully dissent

Because I was stunned to see an LWOP sentence for marijuana possession and due to the description in the opinion concerning how the defendant was found in possession of marijuana, I did a little bit of extra research about Allen Russell.  Though not mentioned in this appellate ruling, this local article from late 2017 reports that Russell was being arrested on murder charges at the time he was found to be in possession of marijuana.  Though I could find no report of Russell being convicted of (or even tried on) a homicide charge, I am inclined to suspect that this background may have played at least some role in how Russell was initially charged by prosecutors and ultimately sentenced for his marijuana possession.

I presume that this case will now be appealed to the Mississippi Supreme Court and perhaps the US Supreme Court if the Mississippi courts continuing to uphold this extreme sentence. I would think that, if the Eighth Amendment is to place any limit at all the length of prison sentences imposed on adult offenders, an LWOP sentence for possessing a small amount of marijuana ought to be subject to very serious scrutiny.  And yet, SCOTUS has a history of upholding extreme recidivism-based sentences (Ewing v. California, 538 U.S. 11 (2003), being the most recent example), and so the past and present work of the Supreme Court in this arena should not provide much basis for Russell to be especially optimistic regarding further appeals.

May 14, 2021 at 12:05 PM | Permalink


My Internet research led me to find the inmate whose case I worked on in approximately 2007, who had received the illegal life sentence in Tampa for "distribution of heroin resulting in death", even though the person he distributed the heroin to did not die and is himself serving a long sentence for further distributing a portion of the heroin he received. It appears that after the U.S. Supreme Court narrowed the legal interpretation of the words "resulting in death" in its decision in Burrage v. United States, 571 U.S. 204 (2014), this inmate, James Terry, was able to file a 2241 Habeas Corpus Petition (thru the Savings Clause of section 2255) in U.S. District Court in Arizona, where he was then incarcerated. See, James Terry v. Warden, USP - Tuscan, Arizona, Mr. Shartle, Case No. CV-15-00107-TUC-CKJ (EJM). The 25-page long (and very informative) Magistrate's Report and Recommendation can be found at Doc. #44 in that case file. The Defendant, James Terry, won his 2241 Petition and was released from prison in December 2017, after serving more than 20 years in prison on his conviction, for distributing a small quantity of heroin to someone who did not die. My reading of the Report and Recommendation reveals that some details from my memories of working on his case in prison in 2007 are not accurate; but I am glad he finally got back on that life sentence and was released from prison. It's a long, hard fight, from inside a prison, when you have the 6,000 pound Gorilla of the U.S. DOJ and an Order of Judgment and Commitment on your back. This inmate would not have won without the work of many jailhouse lawyers over a 20-year period of time.

Posted by: Jim Gormley | May 14, 2021 4:11:13 PM

Doug, you really should look at this case on PACER, James Terry v. J.T. Shartle, Case No. 4:15-CV-00107 (U.S. District Court for Arizona at Tuscan). Doc. # 63 is the Government's "Emergency Motion to Grant Petition for Writ of Habeas Corpus", and Doc #68 is the Court's dispositive Order, reducing the life sentence to the statutory maximum of 20 years (which Mr. Terry had already more than served) and adding 3 years of Supervised Release. Doc. # 52 is the pro se inmate's "Petition in Opposition of Respondent's Objection to the Magistrate's Report and Recommendation", where he just destroy's the Government's position, and finally gets the Judge and the AUSA to understand that he is only legally responsible for distribution of heroin to the person he distributed it too; he is not responsible for further distribution to others by the person he distributed to, where there was no agreement for such further distribution. The Tampa Grand Jury declined to indict him for conspiracy. The subsequent distribution to 2 persons who died is not his legal responsibility, because he did not know about or agree to any subsequent distribution. This was a crazy case, and he was erroneously given a life sentence because one of the people who died was the son of a woman who had worked in the Tampa U.S. Attorney's Office for more than 20 years.

Posted by: Jim Gormley | May 14, 2021 7:01:24 PM

"more than 30 grams"

Nice use of "more" here. One can say "a bit over an ounce" or ...

"Possession (and use) of up to three ounces by anyone 21 and over became legal immediately on Wednesday." [per the new New York policy]

This also stood out a bit for me:

"The State also presented evidence that Russell was later convicted of possession of a firearm by a felon and sentenced to ten years with eight years suspended and two years to serve, followed by five years of post-release supervision."

Even those strongly support of gun rights often are okay with strong penalties for those who possess as a felon or some comparable situation.

This underlines that keeping guns from those not allowed to have them is important for a variety of reasons. The public safety concern is there. But, if possession is going to result in long prison sentences like this, it would be for a general civil liberty position a good idea to have good background checks and so forth.

If guns are not wrongly transferred to people who don't have them, they would not have at times extreme criminal penalties assigned to them. Many don't have much sympathy, but realistically, when you have so many guns, there is more likely criminal use. The gun on some level is not as uniquely horrible to warrant more penalty than it might be in other situations.

This shows how criminal justice is such an interrelated thing. It is backwards to after the fact punish (again often in troubling ways) and not do more to deter in the front end. Or, one can just handwave the cost of long prison sentences as one more cost of mismanaged gun policy as suicides, accidents involving children, police related homicides and so forth.

Posted by: Joe | May 15, 2021 12:48:22 PM

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