(The Return of) Ignatz, by Sam Heldman

Tuesday, November 05, 2002

Drug laws, etc. I have, in at least one earlier post, expressed my admiration for Ala. S.Ct. Justice Johnstone for his courage and wisdom. Catching up on some reading, I just came across something he wrote in a concurrence/partial dissent in a case decided by the Ala. S.Ct. a few weeks ago, Hale v. State, that is worth my quoting and is worth your reading:
Hale did not argue to us that his sentence of life in prison plus ten years violated his Eighth Amendment, United States Constitution, guarantee against cruel and unusual punishment. See Weems v. United States, 217 U.S. 349 (1910), Robinson v. California, 370 U.S. 660 (1962), and Harmelin v. Michigan, 501 U.S. 957 (1991). Nonetheless, wise public officials may benefit the public by pondering the ramifications of this sentence and like sentences, if not for moral reasons, at least for practical reasons.

Hale has received his sentence for selling 2.15 grams, or .07 ounces, of marijuana after having already been convicted of distributing some controlled substance. The record does not reveal the quantity or identity of the controlled substance Hale distributed the first time. The amount of marijuana Hale sold to receive the sentence now before us is enough to make four or five average-sized marijuana cigarettes. State v. Laurino, 108 Ariz. 82, 83, 492 P.2d 1189, 1190 (1972) (the average weight of a marijuana cigarette is "a half a gram").

The August 10-16, 2002, issue of The Economist magazine presents and analyzes some statistics on the criminal justice system in the United States. About 2,000,000 Americans are in state and federal prisons. "A Stigma That Never Fades," The Economist, August 10-16, 2002, at 25. About 4,500,000 more are on parole or probation. Id. Another 3,000,000 Americans are ex-convicts who have completed their sentences and any periods of probation. Id.

The total population of the United States on September 18, 2002, at 7:58:20 p.m., EDT, was 288,076,459. "U.S. POPClock Projection" by the U.S. Census Bureau, Population Division. It was increasing by a net of one person every ten seconds. Id. Even so, the total of inmates, probationers, and ex-convicts, as counted by the slightly less current statistics in The Economist, at 25, aggregated about 3.3% of the entire population, including babies and children too young to be in the criminal justice system.

Nearly one in eight American men of all races, and one in three American black men, has been convicted of a felony. "Too Many Convicts," The Economist, August 10-16, 2002, at 9. One in 20 American men of all races, and one in five American black men, has been incarcerated. Id.

The United States -- counting the federal and state prison systems -- incarcerates a higher percentage of the national population than any other nation in the world. The Economist, at 25. Russia's incarceration ratio is second to that of the United States. Id. The incarceration ratio in England, the highest in Europe, is only one-fifth of the ratio in the United States. Id.

Approximately 51% of all current inmates of state prisons and local jails are incarcerated for nonviolent offenses. Paige M. Harrison and Allen J. Beck, Ph.D., "Prisoners in 2001," Bureau of Justice Statistics Bulletin, NJC 1951989, July 2002, at 12. Approximately 80% of all current federal inmates are incarcerated for nonviolent offenses. Id. at p. 14.

An ubiquitous fad these days is baggy, oversized trousers, falling off the hips. The origin of this fad is the prison system, where prisoners are issued too-big trousers when trousers that fit are unavailable. A variation of this fad -- baggy, long trunks -- has spread to boxers and basketball players, local and national.

The originators of the fad were emulating their friends or role models who were prison inmates. To some extent, the young men who adopt or copy the fad are expressing the same admiration or alliance.

Will the prison population and its admirers and allies reach a critical mass? If so, what will happen?

Exaggerating the dangers of some crimes can be a bonanza for politicians, bureaucrats, and law enforcement officials. The exaggeration prompts legislators at all levels of government to allocate more and more money to the bureaucracies and agencies. The exaggeration likewise prompts legislators, judges, and law enforcement officials to invade and progressively to eliminate the privacy, immunities, and liberties of individual citizens. For instance, hardly more than a vestige remains of the Fourth Amendment, United States Constitution, guarantee against unreasonable searches and seizures. Finally, politicians win votes by creating a menace or a worse menace in the minds of the voters and then "fighting" that menace by legislating or imposing draconian sentences. But what about the costs?

Hale is a drug offender. As of August 2002, 2,349 inmates were serving drug offense sentences exceeding ten years each in the Alabama penitentiary system. Alabama Department of Corrections, Monthly Statistical Report, Demographics and Sentencing (Research, Monitoring & Evaluation, August 2002), p. 7. As of September 30, 2001, the annual cost of incarcerating each inmate in the Alabama penitentiary system was $9,581, the lowest annual cost per inmate in this nation. "Comparison of Alabama Prison System to Other States," American Correctional Association Directory (2002). Even so, and even without any recognition of any increase in the annual cost since September 30, 2001, the annual cost of incarcerating the 2,349 inmates serving drug offense sentences of ten years or longer each in the Alabama penitentiary system is $22,505,769.

Every year this state encounters a budget crisis. The Judicial Branch of government and a number of agencies in the Executive Branch of government are suffering funding shortages, some critical, right now, and will be suffering worse shortages in the near future in the absence of some relief.

I doubt that any politician would be unable to rationalize the life-plus-ten-year sentence in Hale's case and to get some votes in the process. But are the taxpayers really getting their money's worth? Are they getting their money's worth in the hundreds of similar cases? Are we misusing our penitentiary system? Do the other Western nations know something we do not know? Do the public officials in all three branches of our State government owe a duty, as appropriate to their respective constitutional roles, see Article III, § 43, Alabama Constitution of 1901, to reexamine our sentencing laws and their application?

posted by sam 2:42 PM 0 comments


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