Marijuana Law, Policy & Reform

Editor: Douglas A. Berman
Moritz College of Law

Monday, February 17, 2014

Is 13 years for possession of a small amount of marijuana constitutionally excessive?

As Doug has blogged about before, reforms and changing attitudes about marijuana laws raise the question of whether long sentences for small-time marijuana offenders may violate the Eighth Amendment.  

Last Friday, a Lousiana appeals court considered this question, upholding a 13 1/3 year sentence for (.pdf) "possession of a small amount of marijuana."  

The defendant's conviction was his fourth for marijuana possession, apparently warranting a mandatory minimum 13 1/3 year sentence under Louisiana's Habitual Offender Law.  At first, the trial court departed from the mandatory minimum and imposed a (still very lengthy) five-year sentence.  The intermediate appeals court upheld the sentence but the Lousiana Supreme Court reversed and vacated the five-year sentence.  On remand, the trial court reluctantly sentenced the defendant to 13 1/3 years.

On appeal, the defendant argued that a 13 year sentence for marijuana possession was constitutionally excessive.  The appeals court disagreed, seemingly finding itself constrained by the prior state Supreme Court ruling:

Although both trial judges clearly found that the mandatory minimum sentence in this case (thirteen and a half years) is grossly disproportionate to the crime in this case (possession of two marijuana cigarettes), particularly when compared to other jurisdictions,1 at the resentencing hearing the trial judge was unable to articulate additional reasons beyond those already found insufficient by the Louisiana Supreme Court to support a downward departure in this case. 

The decision included a concurrence (.pdf), expressing concern about the long sentence:

The facts in this case are simple. The middle-aged defendant has no history of violence. He has an excellent work history and record of supporting his seven children. The trial judge reluctantly imposed the draconian (as it applies to this defendant and this offense) sentence mandated by the multiple offender statute. I point out (as did the trial judge at the resentencing hearing) that the per curiam issued in this case by the Louisiana Supreme Court implicitly ignored or overruled its own precedent in Dorthey, supra, thus leaving this court and the trial court without guidance as to what, if anything, remains of the discretionary authority of the trial and intermediate appellate courts to determine whether a sentence is constitutionally excessive as to a particular defendant or whether such judicial authority is now totally subsumed by the state’s discretionary authority to multiple bill a defendant.


This is not to say that I approve of the use or distribution of marijuana, but, like the majority notes, the crimes of which Mr. Noble has been convicted have been related to harm that he primarily and directly has caused to himself.


In my view, this is not the case that our courts should be using as the poster child for harsh sentencing. 

For more on Lousiana's harsh approach to marijuana sentencing, see here and here.

Court Rulings, Criminal justice developments and reforms | Permalink


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