LIFE TERM IN STATE DRUG CASE UNUSUAL, CRUEL, COURT DECIDES

In a rare move, a federal appellate court declared Monday that an
Arkansas man's life sentence for selling a small amount of crack
cocaine constituted cruel and unusual punishment in violation of the
Eighth Amendment to the U.S. Constitution. "It is unusual for any
court to find that a sentence violates the Eighth Amendment," said
attorney J. Thomas Sullivan of Little Rock, a professor of criminal
law at the University of Arkansas at Little Rock's William H. Bowen
School of Law. Sullivan represented Grover Henderson before the 8th
U.S. Circuit Court of Appeals at St. Louis. In an opinion written by
U.S. Circuit Judge Morris Arnold of Little Rock, a three-judge panel
of the appellate court reversed U.S. District Judge James M. Moody's
decision last year to dismiss Henderson's 1996 petition for habeas
corpus.

The petition sought relief from a life sentence imposed in Lafayette
County Circuit Court after a jury convicted Henderson on Aug. 30,
1994, of delivery of cocaine. Henderson had no criminal record when
he sold an informant three rocks of crack cocaine for $20 in 1993.
The rocks weighed less than a hundredth of an ounce, "an
extraordinarily small" amount of drugs, the appellate opinion noted.
It said those and other facts the Lafayette County jury heard
indicated that the sentence was not proportional to the crime.

For example, Arnold wrote, it wasn't Henderson who initiated the drug
buy, and there was no indication at trial that he engaged in violence
or had any weapons, which could be considered "trappings" of the drug
trade. "The sentence given to Mr. Henderson, life imprisonment, is
the harshest sentence given in Arkansas for all but two crimes,
capital murder and treason," noted the opinion in which Arnold was
joined by Chief U.S. Circuit Judge Roger Wollman of Sioux Falls,
S.D., and U.S. Circuit Judge Myron H. Bright of Fargo, N.D. The
opinion noted that even state sentencing guidelines, which recommend
specific sentences in an effort at statewide sentencing uniformity,
called for Henderson to receive just 31/2 years in prison.

The guidelines apply to state crimes committed on or after Jan. 1,
1994. Under state statutes applying to crimes committed in or before
1993, the year of Henderson's crime, a cocaine delivery conviction
requires a minimum 10 years in prison. If federal sentencing
guidelines had applied, Henderson would have received just 10-16
months for the same offense. "The penalty imposed in this particular
case is grossly disproportionate to the crime," Arnold said in the
appellate opinion, adding that "we do not reach this conclusion
lightly.

Only after careful consideration do we finally hold that this is one
of those rare cases in which the sentence imposed is so harsh in
comparison to the crime for which it was imposed that it is
unconstitutional." The appellate court opinion compared facts in
Henderson's case to a 1991 U.S. Supreme Court decision, Harmelin v.
Michigan. The Harmelin case was the nation's highest court's most
recent look at whether a sentence in a noncapital case was so severe
that it violated the Eighth Amendment. In that case, a divided court
ultimately decided that a life sentence for a first offender who
possessed 23.5 ounces of pure cocaine wasn't cruel and unusual.

Justice Anthony Kennedy noted that the amount of cocaine involved
"had a potential yield of between 32,500 and 65,000 doses," and that
the Michigan Legislature could have reasonably decided that the
amount warranted a mandatory life sentence. Kennedy referred to "the
threat posed to the individual and society by possession of this
large an amount of cocaine." But Arnold noted that the Harmelin case
involved an amount of drugs that weighed about 2,825 times more than
those sold by Henderson. After detailing the intricacies of Arkansas
law -- specifically, that anyone sentenced to life in prison cannot
become eligible for parole unless the governor commutes his sentence
to a term of years -- Arnold declared that "Mr. Henderson's sentence
is grossly disproportionate to his crime." In looking at whether that
lack of proportion violated the Eighth Amendment, Arnold cited
discussion at the Arkansas Supreme Court, where Henderson first
appealed his conviction. "This was a close case in the Arkansas
Supreme Court," Sullivan noted. Though the Arkansas justices upheld
Henderson's conviction, three of the seven joined in a dissent.

It said in part that the sentence "was so wholly disproportionate to
the nature of the offense as to shock the moral sense of the
community." Once Henderson's case reached federal court, the state
provided the names of two other people who had been sentenced to life
terms in Arkansas for a first offense involving a minimal amount of
drugs, but one of those convictions was overturned and the other case
involved incomplete information, the appellate opinion noted. "In any
event," Arnold wrote, "the evidence indicates that Mr. Henderson's
sentence as a first offender for delivery of less than one-quarter of
a gram of crack is highly unusual and perhaps unique in Arkansas."
The ruling also said "we have located only three other states that
permit a life sentence for a first offense involving the delivery of
the amount of crack cocaine that Mr. Henderson sold, namely, Idaho,
Montana and Oklahoma. ... Many other states, in contrast, provide for
a much lower maximum term for such an offense." Brent Haltom,
prosecuting attorney for the judicial district in which Henderson was
convicted, couldn't be reached for comment Monday afternoon; neither
could attorney John M. Pickett of Texarkana, who represented
Henderson at trial.

Pickett was in another jury trial Monday. Sullivan said the Arkansas
attorney general's office will now have to decide whether to invoke
the state's option of having Henderson resentenced. If it doesn't
order a resentencing hearing, Henderson will simply be released from
prison, after having served seven years, by order of the federal
appellate court. Officials with the attorney general's office
couldn't be reached for comment after regular business hours Monday.
In the 8th Circuit ruling, the judges "are saying his current
sentence is unconstitutional so it can't be enforced," Sullivan said.
But the appellate court can't direct a state court to take any
particular action regarding a new sentence. In remanding the case to
U.S. District Court, the 8th Circuit judges directed that Moody enter
an order granting Henderson's writ of habeus corpus, and thus setting
him free, if Henderson hasn't been resentenced by the state within 90
days of a final mandate being issued.

The mandate would come after a period of time has lapsed in which the
attorney general's office could request a rehearing or appeal the
Monday decision.