1. Eighth Amendment prevents cruel and unusual punishment.
Sentencing
Eighth Amendment prevents cruel and unusual punishment.

2. Sentencing and Proportions
Would a prison sentence of 25 years to life for stealing a slice of pizza be thrown out as a violation of the 8th amendment?
Would it matter if it was a repeat offender?
In 1983, Supreme Court says yes. A South Dakota court sentenced a man to life in prison for passing a bad $100 check. It adhered to a law that allowed a sentence of life without parole for anyone convicted of a fourth felony. Supreme Court (5-4) ruled that the sentence must be proportionate to the crime committed.

3. Factors that determine if a sentence is proportionate to the crime
Compare the
1. seriousness of the crime to severity of sentence
2. kinds of sentences other criminals were given for same crime
3. kinds of sentences given in other jurisdictions

4. Controversy in 1991 – Supreme Court falls away from proportion rule
An Air Force veteran with no priors is convicted of possessing 672 grams of cocaine
Receives a life sentence with no parole under a mandatory Michigan-sentencing law
This sentence is comparable to what a criminal convicted of first-degree murder would receive
In Ohio, the veteran would have received 5-15 years
Supreme Court upholds sentence (5-4)
Reasoning on page
Some judges thought it allowed the court too much power – Ewing v. CA and Lockyer v. Andrade

5. California’s Three Strike Rule
Trying to keep repeat offenders off the streets
Constitution does not adopt any one kind of punishment – Justice Sandra Day O’Connor
Cannot look only at the seriousness of the crime but must also consider prior records and public safety
All of these cases end up with justices that agree in decision but often disagree in reasoning

6. Federal Sentencing 1980 – federal prisons hold 24,000 people
2009 – fed prisons hold over 200,000
50 % are drug offenders
African American males went from 30% in 1987 to almost 40% in (35% of jails and state prisons)
Crack vs. Cocaine
Crack cocaine first hit in the 1980s, is smoked, and produces intense high > cheaper and led to gangs fighting for control of certain streets (turf wars)
Crack babies, drive-by shootings, death of Len Bias

7. Anti-Drug Abuse Acts of 1986 and 1988
Created Office of National Drug Control Policy, whose director plans nation’s strategy to deal with drugs
Set harsh penalties for dealers in cocaine
Mandatory sentence of minimum 10 years without parole for any dealing 5,000 grams or more. Those dealing 500 grams receive minimum of 5 years
Possession of 5 grams is the same 5 year sentence
No one objected that it would mostly affect blacks because they preferred crack due to its lower price
Police concentrated on inner-city neighborhoods, but it was difficult to track white dealers because they usually met indoors in various neighborhoods

8. Led to more African American arrests (more than 80% dealers sentenced were black)
1980s – sentence lengths averaged same for whites and blacks
1995 – blacks serving 40% longer sentences
Fairness – Should crack and powder cocaine be punished differently?
Both cocaine and powder can easily be turned into crack
If eggs were illegal, equivalent laws would punish omelets 100 times more severely than raw eggs –Criminologist Jerome Skolnick

9. Punishment values
Small time crack dealers are punished just like higher-level cocaine dealers
500 grams of powder cocaine produces 2500 to 5000 doses with a street value of $32,500 to $50,000
5 grams of crack cocaine produces 10 to 50 doses and is worth $225 to $750 >>> punished the same as above
Other critics argue that all drugs bring violence, and powder and crack cocaine are comparable (Miami 1980s = powder)
Argue that violence has died down since early turf disputes
Others argue the laws are racist
Whites commit the most drug crimes, but blacks get the most punishment

10. Supporters
Argue that crack is far more addictive than powder cocaine due to the intense high and manner of consumption
Crack addicts often commit other crimes to support their habits
Women give birth to babies who are addicted to crack, among other problems and defects
Lower cost makes it more attractive and addictive properties make it more likely to spread, which = a greater threat than powder
Some who believe laws are misguided argue against racism because they were not passed with racist intent
“There’s a difference between something being mistaken and counterproductive and something being racist … [T]he war on drugs may well be counterproductive, but no[t] … racist.” – Harvard Law Professor Randall Kennedy

11. Defendants have challenged the laws in federal appeals courts, but courts have not overturned any sentences, and the Supreme Court has declined to hear any of them. Challenges are based on
1. the 100:1 ratio of powder v. cocaine sentencing denies African Americans equal protection (14th Am guarantees equal protection)
Due to protecting the public against a cheap drug, laws pass the rational basis test and are not found to have been passed based on discrimination
2. Violation of due process because they are the same drug
Some say they are different; others specify different uses and effects
3. Violation of cruel and unusual punishment
No, because higher amounts cause more harm

12. Some courts have gotten in trouble for only prosecuting cases with African American defendants
These cases are dismissed
In 1995, the US Sentencing Commission recommended the ratio of 100:1 be altered to 1:1 and enhancements allotted to drug deals that involved weapons and violence
Congress refused until 2010 when they lowered the ratio to 18:1 (28 g of crack = 5 years and 280 g = 10 years)
no change for powder, but did get rid of mandatory 1st offense 5 year sentence

13. Debate continues Critics believe the 2010 change is a good step
Supporters believe it will lead to a return to the 1980s violence
In 2011, 12,000 prisoners received reductions in their sentences