When I was in high school in Canada, I came home one day all excited about a short story we had read, an excerpt from a French novel. The novel was Les Miserables. I told my mother all about it and, of course, she already knew the story. The story, if I recall correctly, was titled “The Bishop’s Candlesticks.” In the story Jean Valjean is an escapee from a French prison and he was sent to prison for a term of 5 years for stealing a loaf of bread to feed a relative.
I was outraged at the length of his prison sentence and my mother and I both expressed relief that nowadays (that is, the 1960s) in Canada (and, we thought, the United States) such an extreme penalty for such a small offense was a thing of the past.
We were wrong.
Here’s an excerpt from Elizabeth Nolan Brown, “This 38-Year-Old man Will Spend Life in Prison Over 1.5 Ounces of Marijuana,” Reason, May 13, 2021:
With so many states choosing to legalize marijuana, it’s easy to forget how draconian the penalties for possession can still be. Case in point: The Mississippi Court of Appeals just upheld a life sentence for 38-year-old Allen Russell for being in possession of about one and a half ounces of the drug.
Russell was sentenced in 2019, after being convicted for having 1.55 ounces (or about 44 grams) of marijuana. On appeal, Russell’s lawyers argued that his life sentence amounts to “cruel and unusual punishment and is grossly disproportionate.”
Brown goes on to point out that this minor possession was a third strike.
Actually, this is worse than what happened to Jean Valjean. Jean Valjean stole from someone. There was no allegation that Allen Russell stole his marijuana.
READER COMMENTS
Jens
May 17 2021 at 3:32am
Yes. That is a draconian penalty.
David Henderson
May 17 2021 at 10:05am
Note: I edited a paragraph out of the post because it was about the U.S. presidents’ pardon power and I have since learned that U.S. presidents can’t pardon people for state crimes. Moreover, the piece stands on its own without my getting into the policy views of presidents and vice-presidents.
Ryan M
May 17 2021 at 10:37am
I agree that this would be a wildly disproportionate penalty if that is the complete story. But as an attorney – and as a former public defender who dealt with this sort of thing in particular – I very strongly suspect that what you’ve reproduced above is not the complete story.
I have never practiced in Mississippi, and it is certainly possible that their laws are unique in this respect, but in my experience, you simply don’t get lengthy jail sentences for possession crimes (or really for any crimes that a lot of people often refer to as “victimless”).
For example, what do we see from even this story? The man was allegedly convicted for “having 1.55 oz” of marijuana… The headline you link phrases it “convicted over marijuana,” and the body of the article says “having 1.55 oz.” Neither of those things give much detail about whatever it was the man was charged with, except of course for the amount. The article also mentions that this was the man’s third strike – implying, of course, that if you are caught with drugs 3 times, the penalty will suddenly skyrocket.
There’s a lot that this says, which is missing from the article. First, “strikes” generally only apply to felonies. Second, possession of drugs, virtually everywhere, is a misdemeanor, not a felony. In order for the crime to be pushed to a felony, it needs to accompany some other, generally far more serious, offense. If you consider that anyone buying MJ for personal use is likely buying it by the 8th (1/8 of an oz – and in legalized MJ states, there are caps on how much you can legally buy, but an 8th is the standard amount), this particular charge involves something like 12 times the normal amount of MJ that a person would have.
That alone doesn’t necessarily mean anything, but it implies that he was likely charged not with possession (again, generally a misdemeanor) but with distribution. And as this is his 3rd strike, we can also infer that he has spent at least 2 rounds with felony courts for similar charges. That means he has done jail sentences and probation on at least 2 other occasions (though likely far more). Again, these aren’t things that you get for mere possession.
Now we can spend a great deal of time debating whether drug laws are appropriate or fair, and we can spend an equal amount of time going back and forth about sentencing and proportionality, and that is fair. I have voted in favor of MJ legalization in my own state; on the other hand, I have worked very closely in this field and am very sympathetic to the understanding that, if we agree that “anarchy” is untenable for a society on the one hand, while also agreeing that totalitarianism is an equal evil on the other hand, we do have to meet somewhere in the middle, which requires a far more nuanced recognition of criminality, the role that drugs play in that, and the difficulty of finding a good middle ground with respect to policing.
(sorry … pt1)
AMT
May 17 2021 at 12:56pm
Why write 3 long posts, particularly about stuff the article actually explains? Maybe read it? You don’t even need to infer things when they are explicitly stated…
Yes this possession charge is a felony, and the way many states obviously create their statutes is that the misdemeanor/felony line is simply through the quantity, because we can infer they are almost certainly a dealer if possessing above about an ounce. The article also states these amounts. Further, it’s pretty obvious you’re dealing when you have 5 separate bags, rather than a single one of the same quantity. So I’m sure the judges had no doubt he was in fact dealing, lending him much less sympathy than if it appeared to be legitimately personal use.
All that being said, this is still very excessive punishment. When you consider murders can end up pled down to manslaughter and end up with nowhere near a life sentence, 3 strikes laws seem very harsh for a few of the least harmful, but just barely still felony charges. One burglary, one unlawful gun possession, and possession of a bit too much pot = worse than many murders?
Ryan M
May 17 2021 at 2:25pm
I was not arguing that it is not an excessive punishment when considered in relation to sentences that people might receive for other things. But you’re seeming to agree with my point that this isn’t quite as simplistic as “what an outrageous punishment just because the guy wanted to smoke some pot,” which is the fairly obvious implication (this is an argument that is often explicitly stated, and I apologize if the author is not making that argument, but it certainly seems that way). Point being, the punishment is not just for pot.
Again, reference Jean ValJean. The outrage expressed by the OP (who, as I suggested, may have missed a great deal of what the book was actually trying to say about ValJean, though it has been a long time since I read that book) is over the sheer injustice of the punishment in relation to the crime. That may be true to a certain extent, if all you do is look at this in a vacuum. But that’s not generally how criminal courts actually work in practice.
If I attempted to make a similar point by references Al Capone being brought in on tax evasion, I think a lot of people would point out that the injustice isn’t quite as strong as I’ve suggested. Home invasion isn’t exactly small fries, and I have no problem with its being considered an inherently violent crime. And of course you do not punish a person for the same crime twice, but we also generally accept that certain liberties are forfeited – after following up a burglary charge with unlawful possession of a firearm (the commenter rightly points out that most charges are pled down from other charges … do you think that this individual just happened to be going about his peaceful life in possession of a firearm? When he is involved in home invasions and drug dealing?), the suspect here would have been under some pretty intense scrutiny, likely still on parole, and yet he continues with the drug dealing.
Again, there is likely far more to the story than is contained in either this post or the underlying article (which is not going out of its way to make these points, considering the whole premise is “man gets unjust sentence over marijuana charge”).
First, the man will undoubtedly not spend the rest of his life in prison. But he did get some serious time. But Second, he is not going to jail “over 1.5 oz of marijuana.” He was ultimately found guilty or pled to a charge for drug possession. If that was the whole story, it might even be an outrage. But that’s not why this man is in prison.
David Henderson
May 17 2021 at 6:59pm
You wrote:
I’m not sure whether you’re referencing me or the Reason writer as the author. If you’re referring to me, then no, I’m not making the argument that you state. If I had meant to make it, I would have. I’m simply making the argument that life in prison is too much for a third strike, when the strike is that the person possesses a small amount of marijuana. I’m quite willing to believe that he meant to sell it. If so, the fact that he was trying to engage in a mutually beneficial exchange with someone else doesn’t make him seem worse to me than someone who simply wants to “smoke weed.”
So if it is I whom you’re referring to, I accept your apology.
Ryan M
May 18 2021 at 12:50am
I was referring to both of you … I’m not sure how you can claim to have not made an argument about “… jail just for wanting to smoke pot,” when you follow that up by saying “… just engaging in a little mutually beneficial exchange,” which is an equally simplistic argument. As I said, I get that a lot of people believe that drugs should be fully legal and that (somehow) they constitute “mutually beneficial exchange.” These can be argued on the merits, though I believe them to display a deep ignorance about the way these things actually work in practice. But in making that particular argument (and your analogy to Jean ValJean’s act of desperation in stealing bread) you are very clearly engaging in a sort of moral equivalence that simply isn’t appropriate in this sort of instance. The two are absolutely nothing alike.
If literally the only point you’re trying to make is that you think a maximum sentence is too high for a third strike when one of the strikes in question involves a drug conviction, you might have simply stated so, in which case I would still have responded that there is quite a lot more to the story than that … but you didn’t even do that. Rather, you attempted to create a moral equivalence by referencing the allegedly wildly unjust imprisonment of Jean ValJean for having stolen bread, as if somehow these are in any way similar.
You are simply very far off base, and I imagine that results from a lack of understanding with respect to the people involved. I would invite you to go on a ride-along sometime with a police officer who charges out this sort of thing, or to come sit in a criminal (or even a child dependency) court for a few weeks. You might walk away from that experience still believing strongly in libertarian-minded criminal reforms (heck, I even mentioned that after a dozen years of doing exactly that, I am still the sort of person who frequents EconLog!), but I have a hard time believing that you wouldn’t understand that these things are not nearly as simple as you make them out to be. Maybe this guy didn’t deserve that prison sentence – and based on what I’ve read about that case, I wouldn’t bet on it – and maybe he did. But he isn’t an innocent victim of some misguided and unreasonable antiquated laws about drugs, either. To paint him as such, just to make a point that could easily be made in any number of other ways, is not at all helpful to your cause.
robc
May 18 2021 at 6:52am
You are write about the moral equivalency, stealing a loaf of bread is MUCH MUCH worse than selling pot.
How is there any question about it being a mutually beneficial exchange? Seller wants money more than the pot, buyer wants pot more than the money. It isn’t any more complex than that. It is a simplistic argument because it is a simple concept.
Aleksander
May 18 2021 at 9:21am
Let me just note that my impression of David’s original summary was quite incompatible with Ryan M’s. And with David’s reply. So the original post probably wasn’t phrased very well.
AMT
May 18 2021 at 10:33am
Ryan M,
I LITERALLY EXPLICITLY explained the relevant nuances. See my last paragraph. You said “Seeming to agree.” Why do you skip apparently most of what is said and then respond with double the length, just to prove you didn’t even read and/or understand what the other person said?
Please work on your reading comprehension.
Ryan M
May 17 2021 at 10:49am
(pt2 – continued from above)
… but I don’t think stories like this really aid in that understanding.
Consider the example of Jean ValJean. It is a perfectly fine story (and the crux of the candlesticks part of that story is the value of redemption – note that Jean has turned to petty crime that goes far beyond stealing a loaf of bread to feed his family, and that the Priest, in showing mercy – something that a government system cannot effectively do – aids Jean in confronting that criminality, which serves as the beginning of the entire story, with Jean as very much a changed man for the duration of the book).
But the example of the “loaf of bread” justice is misleading, because it is ridiculous. While there certainly have been “justice systems” that were as arbitrary and unjust as that, the truth is, that has never been considered just, and there is a good reason our justice systems today tend to err on the other end of the spectrum (sometimes far too much so). It is misleading much in the same way that “Robin Hood” references are misleading. Rob from the rich to give to the poor, right? Well, isn’t that just progressive taxation? Lost, of course, is the fact that in the story of Robin Hood, he’s not “robbing from the rich” by stealing from successful businessmen or hard working entrepreneurs. The backstory is an abuse of power, over-taxation, and Robin Hood is stealing from the government, in order to return money that has effectively been stolen from the people in the first place. Again, we can debate the nuance and the application of this sort of story in today’s US, but I think we can agree that it most emphatically does not support ANTIFA or other socialist mindsets, which say that it is somehow noble to right perceived wrongs in the manner of the French Revolution.
Getting back to Jean ValJean – stealing a loaf of bread to feed your family is, again, somehow considered noble, and in that era, in that location, maybe it was. So we recoil at the 5-year sentence as unmerciful and unjust. The implication is that it was a single act of desperation, likely driven by the very society that now sentences this man, and that it is neither a reflection of the man’s overall character (interesting, considering my above comments regarding ValJean)
(dangit – sorry. pt3 will be my last, I promise)
Ryan M
May 17 2021 at 11:04am
(pt. 3 – continued from above comments)
But does that really apply in the situation of a 3rd strike felon who is given a harsh sentence for distribution of drugs? I don’t think that makes any sense regardless of how much you believe in legalized drugs. The two simply don’t relate. A much better analogy would be if Jean ValJean ran a neighborhood theft ring and was involved in the business of stealing bread from local bakers in order to make a living. In that harsh world of Les Miserables, I don’t think this version of Jean would be given 3 strikes, the first two likely coming with years of probation, countless “services” (including drug and alcohol rehabilitation if necessary, job services, unemployment benefits, etc… etc… etc… and, again, we can argue about all of these things – I’m not saying they’re good, I’m merely recognizing that they exist), an attorney at public expense, and, quite frankly, an amazing amount of effort in trying to keep the man out trouble.
So again, we can argue about whether drugs are a harm to society, and we can argue about whether that harm is worth pursuing on a criminal level, and we can even argue about the harshness of criminal sentencing for various sorts of crimes … but that discussion is not aided by overly simplistic analogies to things that simply don’t have enough in common to be useful.
Over the past year, I have been thoroughly dismayed by the quickness of the American public to accept what is effectively totalitarianism – we have actually witnessed arbitrary exercises of authority, and we have seen overt abuses of power through “states of emergency” that stretch emergency statutes beyond recognition and result in the virtual elimination of separation of powers. We have also seen amazingly petty enforcement of these rules, along with “community enforcement” straight out of 20th century dystopian novels. I am very sympathetic to this problem.
But “the war on drugs” is simply not where this problem is playing out in reality. If anything, we are starting to see many of the problems that come from a refusal to recognize the role that drugs play (even if we only view drugs as a symptom) – take a look at Portland, Seattle, and much of California. If we begin to analogize distribution of drugs, happening in a prosperous society that engages in economic redistribution and a vast welfare state, with 18th century crimes of desperation occurring in a non-capitalist state that bears resemblance to a caste system; we end up doing ourselves no service, as we fail both to understand the lessons of history and the problems of today.
DeservingPorcupine
May 17 2021 at 2:27pm
I’m not too upset by this. He was convicted for two home burglaries. Then he was convicted for possessing a firearm. Also, while Brown notes that the burglary convictions, by law, counted as “violent” whether there was actual evidence of violence, but she doesn’t give details on what happened during those burglaries. Was there actual violence? Why not tell us? And what lead to the firearm possession arrest? What was he doing that made cops search him for the gun?
So, would it make people happier if he’d received this sentence for the gun possession?
(FWIW, I believe in full legalization of drugs and the elimination of lots of laws libertarians typically oppose, but I also believe that we typically drastically underpunish things that should indeed be illegal.)
Ryan M
May 17 2021 at 2:36pm
You hit upon an interesting point. That is the fact that we often tend to read these cases with the mistaken assumption that the individual is a person, just like us, who happens to have some amount of weed on him. How many of us smoked pot in college? How many of us still do? How many of us at least have friends who do? It seems like a crazy thing if you were to suddenly see all of these people hauled off to prison… But the reality is, no matter how often the more hard-core libertarians (and I do consider myself, generally, to be a libertarian) try to drudge up those examples, they really don’t exist.
What you’re talking about here is an entire lifestyle, and what is likely an extensive history. The felonies mentioned in the article are only included because they make up 2 of the strikes. What do you think that guy’s entire history looks like? The judge does look at those things at sentencing. As you mention – two home invasions, firearms possession, distribution of drugs… so what else don’t we know? Is this gang related? How did the officers find this firearm? Why was this man stopped in the first place? What are the terms of his parole? What other community supervision might he have been involved with based on non-felony convictions as well? These are all real things that both attorneys and judges had access to, and very little of it is included in the reporting.
That is because the reporting is not on this case (just like nothing surrounding the Floyd case, or even the Chauvin case, really have anything to do with those individuals), it is reporting in favor of a particular worldview, which is that drugs ought to be legal, and therefore anything involving drugs, from a criminal standpoint, is inherently unjust. But cases that just involve drugs are exceedingly rare, and howevermuch the folks at Reason want to pretend that there is this massive ongoing injustice that can be simply stated and cause for outrage, reality is actually far more complicated and nuanced than that.
Mark Z
May 17 2021 at 3:42pm
It’s entirely possible that he committed actual violent offenses in the course of the burglaries or the firearms possession, but was pled down, yet I see no reason to assume that (it’s possible only the prosecutors and police involved in those cases know, so the information may simply not exist). Transparency is pretty important in a criminal justice system, knowing what people are actually being punished for.
And maybe I’m just a bleeding heart, but a life sentence for possessing a firearm would also be extremely harsh. For many libertarians in fact the only thing this guy did that should be punished at all would be burglary.
Ryan M
May 17 2021 at 4:42pm
The reason for assuming that would simply be that most other people feel the same way. If the Reason author would have done some investigation, she probably could have provided that context – I imagine that she didn’t wish to undermine her own point, though, and again, I don’t think that article was written out of any sort of sympathy for the individual, but because it served as an example that seemed to prove a viewpoint that the author was trying to argue.
Keep in mind, as well, that prosecutors’ hands are generally tied by confidentiality and privacy laws. A defense attorney is able to say whatever he wants to a reporter, provided his client is ok with what is being said. But if you try to speak with a police officer or a prosecutor or a judge, you’ll find that they are extremely limited in what they are permitted to reveal about the case.
Same thing goes for social services (I used to be a defense attorney and now work as a lawyer on dependency – CPS – cases). I’m sure you’ve seen those news stories about the kid who gets removed from parents for XYZ reason … almost always, a journalist sitting down with the family involved, telling the story. Notably absent, virtually always, is the other side of the story. And I’m not at all sympathetic to the state – my job involves opposing the state a great majority of the time – but these stories are never as cut and dry. I’ve read about my own cases in the news, and it is often laughable how much stuff is left out, the inclusion of which would almost certainly undermine the entire premise of the story. There is a reason we have lengthy trials, with days and sometimes weeks of evidence, and why jurors are supposed to be disqualified if they’ve read about the case in the news…
alvinccente
May 17 2021 at 3:19pm
For those interested in pursuing details, the actual court decision is at https://courts.ms.gov/Images/Opinions/CO152452.pdf
The court of appeals appears to have been divided 50-50 on this one, and so probably an evenly divided court results in no change to the sentence imposed by the lower court.
The circumstances of Russell’s arrest for this offense are a bit lurid (involving a flash-bang and tear gas), there was clearly more going on than is discussed in the opinion. The amount of marijuana was probably closer to 3 ounces than 1 1/2; the cops only bothered to analyze two of the five bags seized.
David Henderson
May 18 2021 at 12:41pm
Thanks, alvinccente. I just read it. Illuminating.
Of course, it doesn’t make the case that this guy is a “nice guy.” But it certainly is consistent with what I wrote about what he deserves and doesn’t deserve.
David Henderson
May 18 2021 at 12:37pm
Ryan M writes above, in his first comment:
There’s no “of course.” It doesn’t imply that at all. There are probably some readers who will infer that. But all it means is that it was the third felony.
Maybe I respect my readers too much. But if they have been following criminal justice issues much in the last 20 years, they know about the “three strikes” penalty. No one I’ve ever talked to about it in person, on email, or on Facebook has made the mistake of thinking that the third strike has to be the same as the first and second strike.
Indeed, I suspect that that’s why Reason writers and others highlight these issues. Someone who had some pretty bad crimes in his past, and it’s often a distant past, get’s nabbed for something relatively minor.
I do think, as I’ve noted in another comment above, that not only is intent to sell minor, but also that it doesn’t hurt the person being sold to. Gains from exchange is a pretty powerful principle from economics.
David Henderson
May 18 2021 at 7:11pm
I won’t reply to everything you said above, but I will say three things.
First, it is not obnoxious for an economist to point out gains from trade, when that is an important point to make when distinguishing between peaceful activity and theft.
Second, you somehow have changed my criticism of someone who was caught with marijuana into a defense of “my hero.” I never said he was a hero. My guess is that if I met him I wouldn’t even like him. For me, that’s not enough for me to advocate that he spend the rest of his life in prison.
Third, you ask:
I have no idea. My guess is that you don’t either.
Floccina
May 18 2021 at 3:11pm
Arnold Kling’s idea of a legamoron is probably relevant here. I think all drugs except maybe antibiotics should be legally obtainable to all adults, without prescription.
IMO legamorons are a real problem that should be discussed as such. I’d bet someone would make a case for them though.
Ryan M
May 18 2021 at 4:04pm
With all due respect to whomever it is running this blog…
The level of censorship that occurs on these pages is extremely ironic, given that this is a conversation about legalizing drugs. Libertarianism is a strange beast if freedom is very nearly idolized, sometimes to the point of ridiculousness, while debate is overtly stifled.
I would suggest that we are all adults, and that we be permitted to engage in the mutually beneficial exchange of ideas. There is very little point of this blog, otherwise.
Tom West
May 20 2021 at 2:35am
I’d disagree (and I’ve had postings removed more than once) about the censorship.
By default, open on-line communities tend to self-destruct. Keeping them going does not occur naturally. It’s really hard to keep things civil when there are strong disagreements, and incivility has a nice smooth slope into abuse, with no clear lines.
The moderators here have managed to keep things civil over many years. It does mean that a some of the rhetorical swipes that we might be used to making in face-to-face conversation have to be jettisoned, but I feel the community here is overall much better for it.
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