Marijuana Law, Policy & Reform

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Moritz College of Law

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Monday, May 12, 2014

Louisiana appeals court overturns life sentence for marijuana possession (though the defendant still faces a minimum 20-year sentence on remand)

Louisiana may be one of the harshest states when it comes to marijuana sentencing, but a recent case indicates there may be some limits even there.  

Last week, a state appeals court overturned a life sentence for marijuana possession as excessive under state law.  (The defendant's excessiveness argument arose under Louisiana law; he did not make an Eighth Amendment argument.)  As a habitual felon, the defendant's marijuana possession conviction subjected him to a sentencing range of twenty years to life.  Though the court of appeals struck down the life sentence, the defendant still faces a minimum of twenty years for his marijuana conviction (and may very well receive a much longer sentence on remand.)  

Here is the heart of the court's decision (PDF):

While Defendant is a fifth-felony offender for sentencing purposes, and the trial court had discretion to impose a sentence between twenty years and life imprisonment, imposition of the maximum penalty within the sentencing range is excessive and disproportionate given the specific facts of this case. Defendant’s remaining conviction, possession of marijuana, second offense, is a relatively minor felony and only carries a penalty of a fine “not less than two hundred fifty dollars, nor more than two thousand dollars, [or imprisonment] with or without hard labor for not more than five years, or both.” La.R.S. 40:966(E)(2)(a). Furthermore, most of Defendant’s past crimes involved non-violent, drug-related offenses. While he was convicted of aggravated second degree battery when incarcerated as well as attempted possession of a firearm by a convicted felon, these isolated incidents do not indicate an extensive predisposition to violence, and the violent or non-violent nature of these past crimes alone cannot be the deciding factor in an excessive-sentence determination. See State v. Johnson, 97-1906 (La. 3/4/98), 709 So.2d 672.

 

The imposition of a life sentence for such a small underlying crime also poses a much greater harm than good for society, as such a sentence will only fuel Louisiana’s incarceration epidemic and lead to unnecessary economic and social burdens on inmates and taxpayers alike. See State v. Jackson, 11-923 (La.App. 3 Cir. 6/6/12), 92 So.3d 1243, writ denied, 12-1540 (La. 1/18/13), 107 So.3d 626 (Thibodeaux, J., dissenting). While sentence enhancement deters recidivist tendencies and encourages rehabilitation, these goals become tarnished when offenses deserving of a mere slap on the wrist are instead subjected to a “lock-em-up and throw away the key” philosophy. If the applicable enhancement statute provides a range of sentences for the trial court to consider, then the maximum sentence of life without parole should not be levied unless carefully articulated findings and reasons for sentencing clearly justify its imposition. 

http://lawprofessors.typepad.com/marijuana_law/2014/05/louisiana-appeals-court-overturns-life-sentence-for-marijuana-possession-though-the-defendant-still-.html

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Comments

Im concerned with the legal issues regarding mmj "paraphernalia." These days with all the new extracts and other more pure forms of thc available, where does the line fall for paraphernalia? It seems to me that traditional glass pipes and "flower" marijuana is slowly being phased out by what people believe to be healthier, stronger alternatives. Im talking specifically about hash, wax, and oils. Are portable vaporizer pens now to be considered illegal? Were they always illegal? In states like Colorado, it doesn't seem to be an issue, but in other nonlegal states, what is the verdict? Thanks.

Posted by: bert sandavol | May 12, 2014 7:42:20 PM

Im concerned with the legal issues regarding mmj "paraphernalia." These days with all the new extracts and other more pure forms of thc available, where does the line fall for paraphernalia? It seems to me that traditional glass pipes and "flower" marijuana is slowly being phased out by what people believe to be healthier, stronger alternatives. Im talking specifically about hash, wax, and oils. Are portable vaporizer pens now to be considered illegal? Were they always illegal? In states like Colorado, it doesn't seem to be an issue, but in other nonlegal states, what is the verdict? Thanks.

Posted by: Vapor Toy Vaporizer Pens | May 12, 2014 7:43:37 PM

Thank you for your comment. It's tricky to define the limits of drug paraphernalia laws--at least when it comes to smoking (or vaporizing) devices, because these devices could also be used to smoke legal products. As a result, the question of whether an item is drug paraphernalia or a tobacco product can often come down to how the item is marketed. This is why it is not uncommon for stores that sell bongs and the like to label the products as tobacco water pipes (and instruct employees to refer to them this way.) I suspect vaporizer pens would be treated much the same way as pipes or the like are under paraphernalia laws in this regard. Paraphernalia is criminalized federally (see here: http://www.law.cornell.edu/uscode/text/21/863). Most state paraphernalia laws are very similar. Again, the marketing aspect of this means that there are head shops selling "tobacco water pipes" (wink, wink) in pretty much every college town in the country. But, certainly, any company marketing vaporizer pens for marijuana use is in very dangerous legal territory, and not just under state laws. The federal government's Tommy Chong prosecution was 10 years ago at this point, but it is a reminder that federal enforcement of paraphernalia laws is always a possibility (http://reason.com/archives/2004/05/01/tommy-chongs-bongs).

Posted by: Alex Kreit | May 13, 2014 4:39:31 PM

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