In a divided opinion, the Mississippi Court of Appeals upheld Allen Russell’s sentence to life imprisonment without parole for the nonviolent offense of possessing marijuana, rejecting his argument that the punishment does not fit the crime.
Mr. Russell was arrested in his apartment in November 2017 wearing only a white tank top and his underwear after Hattiesburg police breached the windows of his apartment and exploded a flash bang grenade by his front door, then entered the apartment and threw a chemical agent to force Mr. Russell out.
After arresting Mr. Russell, police seized a pair of jeans from the apartment. They found bags in the jeans that were tested and found to contain 43.710 grams of marijuana.
Mr. Russell was convicted of possession of marijuana in an amount greater than 30 grams but less than 250 grams—an offense punishable under Mississippi law by a $3,000 fine, up to three years in prison, or both.
Possessing marijuana is not a crime at all in 17 states, Washington, D.C., and Guam.
But prosecutors argued that Mr. Russell should be sentenced to die in prison under Mississippi’s habitual offender statute, which requires a life-without-parole sentence for every person who has been convicted twice previously of any felony if at least one of the felonies was a “crime of violence.”
Mr. Russell’s prior criminal history was limited to three nonviolent convictions. In 2004, he pled guilty to two counts of burglary of a dwelling for two burglaries of the same house just two days apart. He was sentenced to an alternative program for nonviolent first offenders, followed by probation. He later failed to complete a program at a restitution center and for that technical violation, he was sent to prison for more than eight years. In 2015, he pled guilty to possessing a firearm.
None of Mr. Russell’s prior convictions was defined as a violent crime, and the State presented no facts showing that Mr. Russell had done anything violent. Instead, as Presiding Judge Jack L. Wilson pointed out in his dissent, the fact that Mr. Russell was sentenced to the alternative program and probation suggests the burglaries did not involve acts of violence.
That would not have been enough evidence to trigger a life-without-parole sentence when the burglaries occurred.
Prior to 2014, the State had to prove actual violence during commission of a burglary to designate burglary of a dwelling as a violent crime under the habitual offender law. But in 2014, Mississippi lawmakers defined burglary of a dwelling as a “per se crime of violence.”
That change in the law subjected Mr. Russell to a life-without-parole sentence as a “violent habitual offender” for the nonviolent crime of possessing less than two ounces of marijuana.
Judge Wilson wrote in dissent that Mr. Russell’s sentence is even more grossly disproportionate than the sentence in Solem v. Helm, a 1983 decision in which the U.S. Supreme Court held that a life-without-parole sentence for a series of low-level, nonviolent felonies violated the Eighth Amendment.
Like Mr. Helm, the dissent reasoned, Mr. Russell was sentenced to the state’s second most severe sentence even though his offenses were minor and nonviolent. He was sentenced more harshly than people who committed more serious crimes—and Mississippi punished him more harshly than most other states would for possessing marijuana.
Because the gravity of Mr. Russell’s offense, the extent of his prior criminal history, and the severity of his punishment were the same as in Solem, the dissent concluded that Mr. Russell’s sentence, like Mr. Helm’s, should be struck down as unconstitutionally excessive.
Judge Latrice A. Westbrooks wrote a separate dissent pointing out that Mr. Russell’s case reveals the need to reform Mississippi’s mandatory sentencing scheme.
“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,” she 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.”
Mississippi’s habitual offender law puts sentencing discretion in the hands of prosecutors, Judge Westbrooks observed, leaving courts with no option but to “rubber stamp” the sentence sought by the State—even if it dramatically exceeds the severity of the crime.
Indeed, the Mississippi Clarion Ledger reported last year that there were 86 people—including Mr. Russell—serving life-without-parole sentences in Mississippi prisons for nonviolent crimes under the state’s habitual offender law.
“It is time for those vested with responsibility within the criminal justice system to adjust sentencing mandates to ensure that the punishment is proportional to the crime,” Judge Westbrooks concluded.