Beyond Cruel and Unusual

Criminal punishments in this country have been backwards for quite some time, oftentimes divided down socioeconomic and racial lines. Another, perhaps less obvious and less considered dividing line is violent and non-violent crime. Recently, the Supreme Court refused to hear the case of a 75-year-old disabled veteran who received a shocking life sentence for growing about three dozen marijuana plants—to be used medicinally, not for distribution or sale. How did this insane sentence come about? The law in Alabama, of course:

Alabama, like three other states, mandates a life without parole sentence for simple possession of small amounts of marijuana by people with certain prior felony convictions — and Mr. Brooker had been convicted of a string of robberies twenty years earlier in Florida, crimes for which he served 10 years in prison. In such a case, the law doesn’t require prosecutors to prove any intent to sell the drug.

At first blush, this law seems overly draconian. On the one hand, we want to believe that a felon can do his time in prison, get out, and become a productive member of society. On the other hand, we continually punish those who have “done their time” by often denying them the right to vote, preventing them from getting apartment leases and jobs, and now, by punishing them with literally the maximum sentence allowed under the law for just having a few marijuana plants. Truly, we are through the looking-glass here, folks.

To add insult to injury, the Supreme Court refuses to hear the case, which effectively keeps alive these mandatory life sentencing laws in the few states that still have them on the books. And of course, these laws naturally affect the lower socioeconomic classes inordinately more than the higher ones. After all, if a 75-year-old disabled veteran can’t access or can’t afford the medicinal marijuana he needs to feel well enough to function in his life, he’s going to grow a few plants to help him survive. And because of the completely imbalanced sentences being handed down by trial courts around the country, he’s going to die in prison because of a few pot plants.

Contrast this with a case out of New York that garnered quite a few headlines, where an NYPD officer shot an unarmed black man in a housing project stairwell two years ago. Ex-Officer Peter Liang was found guilty of manslaughter by a jury—as he should have been, at the very least—and the trial moved to sentencing. Both Liang and the victim’s girlfriend spoke in open court. Shortly thereafter the judge decided, sua sponte, that the jury’s verdict was incorrect and unsupported by the evidence and therefore Liang was guilty of negligent homicide at the most. The judge, Danny K. Chun, then sentenced Liang to 5 years probation and 800 hours community service.

There is so much wrong with this situation that I scarcely know where to begin. First, having a jury’s verdict, in a criminal case, overturned on a whim during sentencing by a sitting judge is unthinkable and ludicrous [at least by Texas standards]. While “judgment notwithstanding the verdict” is a common practice in civil courts, it’s essentially unthinkable in criminal case: either the defendant is acquitted and a reversal by the judge would violate their Sixth Amendment, or the defendant has been convicted and a reversal would certainly trigger an appeal by the State. Second, compare Liang to our 75-year-old disabled veteran growing weed above. Liang literally ended a person’s life—and still maintains it was an accident—and received probation, while the disabled vet received a mandatory life sentence for growing a few pot plants.

Never mind that an ostensibly neutral magistrate overturned a lawful jury verdict; violent and non-violent crimes in this country are woefully out of balance regarding sentencing. Should Liang have received prison time? Perhaps, perhaps not. He was a first-time offender and, according to the District Attorney, had little likelihood to re-offend. (Unless perhaps again confronted with an unknown figure in a stairwell in a housing project in New York City.) In reality, the only re-offending our disabled vet was going to commit was growing a few more pot plants to make the end of his life a little bit more bearable.

What is the point of this exercise? To being to raise awareness that sentences in this country do not make sense anymore. The Constitution prohibits “cruel and unusual punishment,” but that of course has no definition under the law. Every person in this country could look at a given sentence and have a different opinion regarding if it seemed cruel and unusual. Is going to prison for a number of years for shooting an unarmed person cruel and unusual? Hardly, as that sentence is meted out over and over throughout the country. However, is life in prison for a few plants a cruel and unusual punishment? I think we can all almost universally agree that it is.

Judges in our country, at least among the various state systems, have an incredible amount of discretion when it comes to sentencing. But, where they are elected directly by the people of the state, those same judges are held accountable to the people. The only way that will work is if we, the people, pay attention to what our judges do and do not do in a given situation, and react accordingly: re-electing them, or replacing them. You want a revolution? Here’s an easy place to start.

To end on a somewhat positive note, a judge in North Carolina sentenced a veteran to 24 hours behind bars for a driving while intoxicated case. Seems fairly normal, right? Well, the twist here is the judge spent the 24 hours with the veteran, and in fact even drove him to the jail for his sentence. That is true compassion, that is knowing all of the circumstances behind a person and their actions, past and present. Yes, a man may have felony convictions on his record, and yes, a man may be a former police officer with a clean sheet, but the crime in front of the judge must be the one that bears the most scrutiny. There’s a reason we keep propensity evidence out of trials; maybe it needs to be excluded from sentencing as well. Regardless, we need to have a huge discussion about sentencing in his country. The time is ripe.

About Erik Locascio

Erik Locascio is the owner and principal attorney of The Law Offices of Erik M. Locascio, PLLC, in Katy, Texas, where he practices criminal defense. Previously, he spent three years at the Harris County District Attorney's Office as both a misdemeanor and felony prosecutor.


  1. […] on the Harris County Criminal Lawyers Association’s Reasonable Doubt blog, I wrote a post regarding sentencing in this country and how it’s time to have a national […]