On May 11, the Mississippi Court of Appeals upheld a life sentence without parole for 38-year-old Allen Russell, sustaining his 2019 guilty conviction for possessing marijuana in an amount over 30 grams (1.05 ounces).
“Upon review of the case before us, and in accordance with precedent, we find that Russell’s sentencing as a habitual offender was not grossly disproportionate as he claims and was clearly within the prescribed statutory limits,” appeals judges wrote in their decision.
Though Russell has never been convicted of bodily criminal violence, he’s poised to spend the rest of his life behind bars.
Retroactively Labeled a ‘Violent Offender’
Russell’s 2019 conviction wasn’t his first brush with the law, but it may be the one that seals his fate.
In the state of Mississippi, someone can be sentenced to life in prison after serving at least one year on two different felony charges, one of which is deemed “violent.” Prior to his arrest for marijuana possession, Russell had twice been convicted of two non-violent felonies.
Russell’s criminal record shows that he was convicted of two home burglaries in 2004. Those two burglaries took place within 48 hours of each other and were at the same residence, according to court documents, reported by the Associated Press. Though neither offense was proven to be violent, after Russell served eight years in prison for those crimes, Mississippi law changed in 2014 to categorize all burglaries as violent crimes.
Russell’s prior convictions were not violent in nature, at least not based on the common definition of the word. He served eight years for breaking into a residence twice within a 48-hour window. But states often play fast and loose with the definition of “violence” in order to assign harsher penalties for lesser offenses. That’s exactly what Mississippi did in 2014, labeling all burglaries as violent crimes regardless of whether the property was even occupied at the time of the crime.
After being retroactively labeled a violent offender, in 2015 Russell was convicted of unlawfully owning a firearm. In the US, people who commit felonies are permanently stripped of their Second Amendment rights —even after they have served out their sentence.
Finally, Russell was arrested in November 2017 for possessing marijuana in an amount between 30 and 250 grams, or 1.05 and 8.8 ounces. A lab confirmed that the bags containing a plant substance found in Russell’s possession contained 1.55 ounces of marijuana. In Mississippi, this can carry a maximum sentence of three years. However, due to the state’s habitual offender law, similar to other states’ “three strikes” laws, Russell’s sentence was drastically increased—to life without the possibility of parole or probation. And now this extreme punishment has been confirmed by an appellate court.
Vices Are Not Crimes
In a country where marijuana is legally sold and consumed in several states, a life sentence for a marijuana conviction is absurd, even when compounded with Russell’s previous charges of firearm possession (also a victimless crime) and burglary. Despite the Eighth Amendment of the Constitution prohibiting cruel and unusual punishment, Mississippi’s habitual offender law is able to skirt around that for repeat offenders even if they have never laid a violent finger on another person, due to the new technicality of all burglaries being considered violent in nature.
Many experts and analysts agree that the most effective form of criminal justice is one that emphasizes reform and restitution, not retribution. Restorative justice has been shown to reduce recidivism more than punitive justice.
As Clark Neily of libertarianism.org wrote, “To be legitimate... a criminal justice system must punish only those people who truly deserve punishment, and it must do so in a way that is proportionate to the magnitude of their wrongdoing.”
Victimless crimes—crimes that don’t violate the rights of others, like Russell’s marijuana and gun convictions—do not warrant a criminal justice response at all. And lifelong incarceration without hope for pardon or parole is grossly disproportionate even to the serious crime of burglary.
To put the disproportion into perspective, a study from the Bureau of Justice Statistics shows that the average sentence for convicted rapists in the United States is 9.8 years, with only 5.4 years of actual time served. Legitimately violent sexual offenders who often ruin their victim’s lives, physically and/or mentally, serve much lighter sentences than Russell will.
Even those who believe that drug use is an unhealthy and immoral vice should be opposed to such sentences as Russel’s, on the grounds that, as the great libertarian political theorist Lysander Spooner wrote, “vices are not crimes”:
“Vices are those acts by which a man harms himself or his property.
Crimes are those acts by which one man harms the person or property of another.
Vices are simply the errors which a man makes in his search after his own happiness. Unlike crimes, they imply no malice toward others, and no interference with their persons or property.
In vices, the very essence of crime—that is, the design to injure the person or property of another—is wanting.
It is a maxim of the law that there can be no crime without a criminal intent; that is, without the intent to invade the person or property of another. But no one ever practices a vice with any such criminal intent. He practices his vice for his own happiness solely, and not from any malice toward others.”
Whether marijuana use is a vice or not does not matter from a criminal justice perspective. Non-violent vices warrant non-violent, non-governmental remedies (like treatment, education, or the natural consequences of the vice), not locking people up until they’re dead.