White-Collar Crime

What The New York Times and Alabama Chief Justice Roy Moore Agree On

Sentencing reform makes for strange bedfellows in insane marijuana case.

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prison prisoner jail convicted criminalIt’s rare that the New York Times Editorial page weighs in on whether cert should be granted in a case.

But last week it did. The Times argued that the Court should grant cert in the case of Lee Carroll Brooker, a disabled veteran who grew three dozen marijuana plants for his own medicinal use in Alabama.

Brooker suffered from chronic pain and found that marijuana eased it. Unfortunately, he also had a prior conviction in Florida 20 years ago.

The police found his plants, which weighed 2.8 pounds. Under Alabama law, if you have more than 2.2 pounds of marijuana plant and a prior conviction you are subject to mandatory life without parole.

Even though much of the plants were unsmokable, like the vines and stalks, the whole plant figures into the weight.

As the Times tells it:

At his sentencing, the trial judge told Mr. Brooker that if he “could sentence you to a term that is less than life without parole, I would.” Last year, Roy Moore, chief justice of the Alabama Supreme Court, called Mr. Brooker’s sentence “excessive and unjustified,” and said it revealed “grave flaws” in the state’s sentencing laws, but the court still upheld the punishment.

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It seems to me that it’s kind of self-evident that this is the wrong result. But the Times goes on to explain why it’s wrong anyway:

Life without parole, second only to the death penalty in severity, should never be a mandatory sentence for any crime, much less for simple possession of marijuana, which is not even a crime in many parts of the country. If this punishment is ever meted out, it should be by a judge who has carefully weighed the individual circumstances of a case.

The times they have a’changed on marijuana. And the Times urged the Court to take the case so that it could recognize that and hold that such a drastic penalty is cruel and unusual.

On Monday the Court denied cert.

Which raises, for me, the question why this happens. If both the New York Times Editorial Board and Roy Moore — the guy who lost the Chief Judgeship over a display of the Ten Commandments, regained it through election, then ordered Alabama judges to ignore a federal court order to do same sex weddings — thinks something is over the line, then how on earth did the thing come to happen in the first place.

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The answer, of course, is prosecutors. There are a whole lot of crimes they have to choose from in Alabama, but some prosecutor decided that Brooker’s weed growing was the one that needed to be taken up.

Why this happens is suggested in a great piece by Radley Balko published on the same day the Supreme Court rejected Brooker’s petition — too many prosecutors think their job isn’t to do substantial justice but, rather, to get convictions.

Balko ponders why North Carolina is debating adopting a rule that prosecutors who learn that there is evidence that exonerates someone in prison should be required to hand that evidence over to defense counsel, or the person who is in prison.

There’s currently no such requirement (and the rule that a prosecutor do “substantial justice” apparently doesn’t reach this scenario).

North Carolina prosecutors are opposed to that rule. It isn’t clear why. As Balko writes:

The only argument I’ve seen anyone try to make against such a rule is that it’s unnecessary, because prosecutors — being dutiful public servants and all — already do this. But even if that’s the case (and it clearly isn’t, see above), it really isn’t a convincing argument against having a rule. There’s little cost to having a rule. Its existence doesn’t require any funding. It merely exists as a way to possibly punish the prosecutors who don’t follow it. If they’re all already following it, nothing changes.

So why would prosecutors oppose this rule? Probably for the same reason they’d decide that Brooker ought to die in prison.

Matt Kaiser is a white-collar defense attorney at Kaiser, LeGrand & Dillon PLLC. He’s represented stockbrokers, tax preparers, doctors, drug dealers, and political appointees in federal investigations and indicted cases. Most of his clients come to the government’s attention because of some kind of misunderstanding. Matt writes the Federal Criminal Appeals Blog and has put together a webpage that’s meant to be the WebMD of federal criminal defense. His twitter handle is @mattkaiser. His email is mkaiser@kaiserlegrand.com He’d love to hear from you if you’re inclined to say something nice.

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